UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


UNIVER%        ^LOSANGElfr. 


&UIBRARY0, 


\WEUNIVEItf//y 


^OilWDJO- 


^0FCA11F0% 


HZT^I 

C^j 

"-       ^X5 

6^ 

c>  <dr^   ' 

A  TREATISE 


ON  THE 


LAW  AND  PRACTICE 


RECEIVERS 


APPOINTED  BY  THE 


COURT  OF  CHANCERY. 


BY 

WILLIAM  WILLIAMSON  KERR, 

OF  LINCOLN'S  INN,  B ARRISTER-AT-LA W. 


WITH   NOTES  AND   REFERENCES   TO    AMERICAN  AUTHORITIES 

BY 

GEO.  TUCKER  BISPHAM. 

SECOND   AMERICAN   EDITION. 


PHILADELPHIA: 
KAY  &  BROTHER,  17  AND  19  SOUTH  SIXTH  STREET, 

LAW  PUBLISHERS,  BOOKSELLERS,  AND  IMPORTERS. 

18TT. 


T 


Entered  according  to  Act  of  Congress,  in  the  year  1872,  by 

KAY     &    BROTHER, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


Entered  according  to  Act  of  Congress,  in  the  year  1S77,  by 

KAY    &     BROTHER, 
in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


CO 


rin  i,  a  del  nn  a: 

COLLIN*,   PBINTBB,  70  J  J  AVNE  BTREF.T. 


PRE  FAC  E 


SECOND  AMERICAN  EDITION, 


The  present  is  the  second  American  edition 

of  this  work.     It   contains   references   to   the 

American  and  English  authorities  down  to  the 

present   time,   and   embraces    some    decisions 

which  had  been  omitted  from  the  first  edition. 

Many  of  the  notes   have  been  enlarged,  and 

some    entirely   rewritten.      An    Appendix    of 

Forms  has  been  added,  which  has  been  drawn 

principally  from  Seton  on  Decrees,  but  which 

has   been   made   up  somewhat   from   cases   in 

actual   practice   in   this    country.     The   index 

has  been  enlarged,  and  the  references  carefully 

verified. 

G.  T.  B. 

March,  1877. 


SUMMARY  OF  CONTENTS. 


Table  of  Cases  cited 


PAGE 

vii 


CHAPTER  I. 

Principles  on  which  a  receiver  is  appointed  by  the 
Court  of  Chancery 


1—15 


CHAPTER  II. 

In  what  cases  a  receiver  will  be  appointed  .  .  16 — 127 
Section  1. — In  the  case  of  infants  ....  16 — 18 
Section  2. — In  the  case  of  executors  and  trustees  .  18 — 28 
Section  3. — Pending  litigation  as  to  probate  .  .  28 — 37 
Section  4. — In  cases  between  mortgagor  and  mort- 
gagee            38—55 

Section    5. — In  cases  between  debtor  and  creditor      .  55 — 65 
Section    6. — In  the  case  of  public  companies     .        .  66 — 80 
Section    7. — In  cases  between  vendor  and  purchaser  .  81 — 87 
Section    8. — In  cases  between  covenantor  and  cove- 
nantee           87 — 89 

Section    9. — Between  tenant  for  life  and  remainder- 
man      89 

Section  10. — In  partnership  cases       ....  90 — 110 

Section  11. — In  cases  of  bankruptcy  ....  110 — 113 

Section  12.— In  cases  of  lunacy 113 — 114 

Section  13. — In  the  case  of  tenants  in  common  .        .  114 — 120 
Section  14. — In  the  case  of  parties  in  possession  of  real 

estate  under  a  legal  title    .        .        .  120 — 127 


CHAPTER  III. 

Over  what  property  a  receiver  may  be  appointed      .     128 — 135 


CHAPTER  IV. 

Who  may  be  appointed  receiver  . 


.     136—143 


VI  CONTENTS. 

CHAPTER  V. 

PAGE 

Mode  of  the  appointment  of  a  receiver       .        .        .  144 — 167 

CHAPTER  VI. 

Effect  of  the  appointment  of,  and  possession  of,  a 

receiver 168 — 195 

CHAPTER  VII. 

Powers  and  duties  of  a  receiver  ....  196 — 226 

CHAPTER  VIII. 

Liabilities  of  a  receiver 227 — 235 

CHAPTER  IX. 

Salary  and  allowances  of  a  receiver         .        .        .  236 — 246 

CHAPTER  X. 

Accounts 247 — 262 

CHAPTER  XL 

Discharge  of  a  receiver 263 — 271 

CHAPTER  XII. 

Liabilities  and  rights  of  sureties        ....  272 — 276 

CHAPTER  XIII. 

Managers  and  consignees 277 — 286 


APPENDIX  OF  FORMS 287—304 

GENERAL  INDEX 305—328 


TABLE  OF  CASES  CITED. 


Abbott  v.  Rtratten,  65 

v.  Packet  Co.,  215 
Aberdeen  v.  Chitty,  9,  53,  146 
Ackland  v.  Gravener,  38,  44 
Adair  v.  Wright,  43 
Adams  v.  Haskell,  241 

v.  Woods,  240,  241,  251 
Adler  v.  The  Milwaukee,  &c.  Co., 

81,  82 
Agricultural  Bank  v.  Burr,  225 
Ainsley's  Petition,  241 
Alabama  R.  R.  Co.  v.  Jones,  13, 

112 
Albany  City  Bank  v.  Schermer- 

horn,  177,  182,  193 
Albany  Ins.  Co.  v.  VanVranken, 

207 
Alexandria,  etc.,    R.    R.   Co.   v. 

Bowen,  157 
Allen  v.  Central  R.  R.,  208,  234 
Ames  v.  Birkenhead  Docks,  65, 

67,  68,  71,  73,  130,  131,  138, 

155,  170,  177,  179,  180,  191, 

192 
American  Co.  v.  Patterson  Co., 

84 
Anderson  v.  Anderson,  212 

v.  Guichard,  36,  37 
v.  Kemshead,  65,  127, 
155 
Angel  v.  Smith,  38, 169, 177, 185, 

186,  198,  233 
Anom,   20,   137,  187,   215,  228, 
241,  268 
v.  Jolland,  137,  257,  258 
v.  Lindsay,  134 
Archdeacon  v.  Bowers,  48,  115 
Armstrong  v.    Armstrong,    182, 

208 
Arnold  v.  Mayor  of  Gravesend,  65 


Artisan's  Bank  v.  Treadwell,  169 
Aston  v.  Heron,  169,  177,   187, 

192,  235 
Astor  v.  Turner,  39 
Atchinson  v.  Davidson,  226 
Atkinson  v.  Henshaw,  29 
Att.-Gen.  v.  Bank  of  Columbia, 
84,  138 
v.  Bank  of  Niagara,  81 
v.  Bowyer,  21 
v.  Day,  143,  156 
v.  Gee,  142 

v.  Haberdasher's  Com- 
pany, 270 
v.  Lewis,  241 
v.  Mayor  of   Gal  way, 

151,  152 
v.  Utica  Ins.   Co.,  80, 

81 
v.  Vigor,  217 
Austin  v.  Figueira,  62,  147 
Averall  v.  Wade,  273 


Bagot  v.  Bagot,  26,  141,  156 

Bailey  v.  Ford,  98 

Bainbridge  v.  Blair,  18,  19,  146, 

151,  175,269 
Bainbrigge  v.  Baddeley,  1,   115, 
123 
v.  Blair,  21,  163 
Baker  v.  Backus,  2,  9,  141,  144 
Balfe  v.  Balfe,  220 
Ball  v.  Oliver,  29,  32 
Ballou  v.  Farnum,  233 
Bangs  v.  Mcintosh,  81,  208 
Bank  of  Bethel  v.  Pahquioque 
Bank,  84,  207 
v.  Kennedy,  207 
v.  Schermerhorn,  62,  147 


Vlll 


TABLE   OF   CASES   CITED. 


Bank  Commissioners  v.  Bank  of 
Buffalo,  84,  171 
of  Columbia  v.  The  Att.- 

Gen.,  159 
of  Niagara,  Matter  of,  236, 

241 
of  North  America  v.  Whee- 
ler, 207 
of   Ogdensburg  v.  Arnold, 
39 
Banks  v.  Banks,  139 
Baptist  Church  v.  Scannell,  81 
Barker  v.  Dayton,  63 
Barkley  v.  Lord  Reay,  19,  133, 

281 
Barlow  v.  Gains,  55,  146,  154 
Barnard  v.  Darling,  151 
Barnes  v.  Rettew,  112 
Barrett,  Ex  parte,  141 
Barry  v.  Briggs,  149,  226 
Bartley  v.  Bartley,  25 
Barton  v.  Rock,  37 
Bates  v.  Brothers,  8,  46,  133 
Bathe  v .  Bank  of  England,  25 
Battaile  v.  Fisher,  227,  241 
Battle  v.  Davis,  168,  206 
Baxter  v.  West,  11,  15,  98,  99 
Baylies  v.  Baylies,  14,  21,  156, 

212 
Beaumont  v.  Beaumont,  26 
Becker  v.  Torrance,  182 
Beers  v.  The  Chelsea  Bank,  264 
Beecher  v.  Bininger,  6 
Bell  v.  Bird,  112 

v.  Shibley,  84 
Belmont  v.  The  Erie  R.  R.  Co., 

84 
Benneson  v.  Bill,  140,  196 
Bennett  v.  Colley,  27 

v.  Robins,  202 
Bentinck  v.  Willink,  281 
Berkeley  v.  King's  College,  131 
Bemey  v.  Sewell,  38,  45,  46,  50, 

56 
Bertie  v.  Lord  Abingdon,  89, 174, 

248,  267 
Bertrand  v.  Davies,  175,  259,  286 
Best  v.  Skermier,  42 
Beverley  v.  Brooke,  2,  7,  18,  42, 
169,  265 
v.  Scott,  265 
Beytagh  v.  Concannon,  162,  253 
Bidlack  v.  Mason,  207 


Bill  v.  New  Albany,  &c.  R.  R. 

Co.,  81 
Billinghurst,  Re,  114 
Birch,  Re,  113 

v.  Oldis,  192.  202,  223 
Birdsall  v.  Colie,  90,  91 
Bishop's  AValtham  Railway  Co., 

Re,  65 
Bisson  v.  Curry,  147 
Blackborough  v .  Raven  Hill,  145 
Blackmore  v.  Yeates,  76 
Blair  v.  Toppitt,  255 
Blakeney  v.  Dufaur,  7,  90,  105, 

109,  136 
Blake  v.  Alabama,  etc.,  R.  R.  Co., 

13 
Blakeway  v.  Blakeway,  158,  159 
Blanchard  v.  Cawthorue,  64, 128, 

129 
Blois  v.  Belts,  165,  272 
Blondheim  v.  Moore,  6,  9, 10, 147 
Bloodgood  v.  Clark,  62,  146 
Blumeuthal  v.  Brainerd,  208,  233, 

279 
Blunt  v.  Clitherow,  217 
Boehm  v.  Wood,  86,  171,  175 
Bolles  v.  Duff,  136,  207.  212 
Booths  Clark,  2,  168,  207 

v.  Coulton,  145 
Bord  v.  Tollemache,  38,  51,  156, 

157 
Bostwick  v.  Isbell,  147 
Bothomly  v.  Fairfax,  165 
Bowen  v.  Brecon   Railway  Co., 

67,  70,  74,  76,  77,  79,  278 
Bowersbank  v.  Colasseau,  158 
Bowery  Savings  Bank  v.  Rich- 
ards, 178 
Bowker  v.  Henry,  9,  15,  99 
Bowman  v.  Bell,  21,  151 
Boyce  v.  Burchard,  104 
Boyd  v.  Murray,  13 
Brady  v.  Fitzgerald,  40 

v.  Furlow,  57,  123 
Braham  v.  Strathmore,  267 
Branch  v.  Sheffield,  241 
Brandon  v.   Brandon,    203,  204, 

276 
Brenan  v.  Preston,  21,  131 
Brennan  v.  Kenny,  205 
Bridges  v.  Hales,  17 
Briggs  v.  Merrill,  172 
Brigstock  v.  Mausel,  89 


TABLE    OF   CASES    CITED. 


IX 


Bristowe  v.  Needham,  216,  241, 

242,  244,  257,  259 
Britton  v.  McDonnell.  190,  264 
Broad  v.  Wickharn,  191 
Brodie  v.  Barry,  25 
Brooke  v.  Cooke,  18 
Brooker  v.  Brooker,  21,  145 
Brooks  v.  Greathed,  185, 186, 190 
Broome,  Ex  parte,  105 
Brower  v.  Brower,  253 
Browell  v.  Reed,  19.  20 
Brown,  Matter  of,  184 

v.  Blount,  148 

v.  Chase,  44 

v.  Newall,  54 

v.  Nichols.  62 
Brownhead  v.  Smith,  248,  257 
Browning  v.  Bettis,  16H 
Brundred  v.  The  Patterson  Ma- 
chine Company,  83 
Bryan   v.    Connick,  50,    56,   58, 

184 
Buckmaster  v.  Buckmastcr.  252 
Bunbury  v.  Banbury,  133,  281 
Burrows  v.  Molloy,  51 
Burt  v.  Burt.  9,  19 
Bury  v.  Newport,  139 
Butler,  Re,  171,  173.  175,  190 

v.  Freeman,  16 
Butterworth  v.  O'Brien,  225 
Buxton  v.  Monkhouse,  42,  147 
By  water,  A'e,  21,  145 


Cadle  v.  Baker,  179 
Caillard  v.  Caillard.  147 
Cain  v.  Warford,  149 
Cairns  v.  Chabert,  89 
Calhoun  v.  King,  20 
Calkins  v.  Atkinson.  207 
Callanan  v.  Shaw,  39.  44,  45, 150 
Calvert  v.  Adams,  115 
Camp  v.  Barney,  231 
Candler  v.  Candler,  131 
Carlisle  v.  Berkeley,  163 
Carron  Iron  Co.  v.  Maclaren,  134 
Carrow  v.  Ferrier,  121,  123,  125 
Case  v.  Marchend,  2(18 
Cassamajor  v.  Strode,  219 
Cassilear  v.  Simons,  178 
Catlin,  Re,  244 
Chalie  v.  Pickering,  235 
Chalk  v.  Paine,  56 


Chambers  v.  Goldwin,  42,  45,  264, 

235 
Chapin  v.  Thompson.  209 
Chaplin  v.  Young,  15,  104,  128, 

278 
Chappell  v.  Akin,  20 
Chapman  v.  Beach,  99,  103,  105, 

107 
Chase's  Case.  7 
Chater  v.  Maclean,  223 
Chaytor  v.  Maclean,  159 
Cheever  v.  The  Rutland  Railroad 

Company,  43 
Chicago,  etc.,  Co.  v.  U.  S.  Petro- 
leum Co.,  6.  123,  126 
Chinnery  v.  Evans,  55 
City  Ins. Co.  v. Commercial  Bank, 

208 
Clagett  v.  Salmon,  44 
Clairmont,  Ex  parte,  141 
Clark  v.  Bininger,  177.  191 
v.  Brock  way,  L76 
V.  Dew.  121*.  124 
v.  Ridgely,  9,  147 
Clarke  v.  Fisher,  222 
Clayton,  Ex  parte,  161.  240 
Clegg  i'.  Edmondson,  KM) 
v.  Fish  wick,  8,  L05 
Clements  v.  Beresford,  258 
Clinch  v.  Southside  R.  R.  Co..  84 
Cockburn  v.  Raphael,  162,  282 
Coddington  v.  Tappan,  10 
Codringtunt'.  Johnstone,  176,200, 
202. 285 
v.  Parker,  46,  47 
Cofer  v.  Echerson,  9,  123 
Cohen  and  Jones,  Matter  of,  177, 

197 
Cohen  v.  Myers,  57 
Colemore  u.  North,  160 
Colgate  v.  R.  R.  Co.,  150 
Collins  v.  Case,  150 

v.  Young,  101 
Columbian  Insurance  Co.,  The,  v. 

Stevens,  208 
Colvin's  Case,  7,  29 
Commonwealth  v.  Bank  of  Penn- 
sylvania, 81 
v.  Franklin  Ins. 

Co.,  235 
v.  Runk,  208 
Comyn  v.  Smith,  221 
Cougdeu  v.  Lee,  62 


TABLE    OF   CASES    CITED. 


Colliding  v.  Butler,  247 

Connor  v.  Connor,  31,  32 

Const  v.  Harris,  94,  105 

Contract  Corporation  v.  Totten- 
ham and  Hampstead  Junction 
Railway  Co.,  74 

Cook  v.  Sharman,  244 

Cooke  v.  Gwynn.  152 

Cookes  v.  Cookes,  137,  139,  157, 
158,  159 

Cooney  v.  Cooney,  197 

Coope  v.  Bowles,  207 

v.  Creswell,  15,  50,  56 

Cooper  v.  Reilly,  129 

Copper  Hill  Mining  Co.  v.  Spen- 
cer, 3 

Corcoran  v.  Doll,  125 

Corey  v.  Long,  242 

Cormicks,  Re,  17,  21 

Corning  v.  White,  62 

Corrigan  v.  The  Trenton  Dela- 
ware Falls  Co.,  84 

Cortleyeu  v.  Hathaway,  42,  51, 
58 

Courand  v.  Hanmer,  133,  241,  245 

Covington  Drawbridge  Co.  v. 
Shepherd,  67,  82 

Coward  v.  Chadwick,  148 

Cowbridge  Railway  Co.,  Re,  62, 
63,  65 

Cowdrey  v.  R.  R.  Co.,  237,  241, 
249 

Cox  v.  Champneys,  143 
v.  Deters,  91 

Cozens  v.  Bognor  R.  R.  Co.,  224 

Cramer  v.  Griffith.  188 

Crane  v.  Ford,  278 
v.  McCoy,  10 

Cranmer,  Ex  parte,  240 

Crawford  v.  Ross,  4,  10 

Crawshay  v.  Maule,  104 

Cremen  v.  Ilawkes,  154 
v.  Hughes,  40 

Creuze  v.  Bishop  of  London,  158 

Crew,  Lord,  v.  Edleston,  53,  68, 
130 

Crisp  v.  Platel,  223 

Croniii  v.  McCarthy,  223 

Crosbie  v.  Barry,  215 

Crow  v.  Wood,  14,  182 

Crowe  v.  Halliday.  53 

Cullen  v.  Dean  of  Killaloe,  128 

Cupit  v.  Jackson,  2,  10,  11,  44 


Curling   v.   Marquis   of    Towns- 
hend,  14,  62 


Dacie  v.  John,  110,  206 
Dalmer  v.  Dash  wood,  50,  52 
Daly  v   Blake,  177 
Darner    v.    Lord    Portarlington, 

266 
Dancer  v.  Hastings,  202,  211 
Davenport  v.  Kelly,  182 
v.  Moss,  176 
Davies  v.  Cracroft,  255 
Davis  v.  Amer,  107 
v.  Barret,  155 
v.  Davis,  63 

v.  Duke  of    Marlborough, 
8.  14,  50,  52,  58,  130, 
157,  175,  200,  265,  269 
v.  Gray,  196,  223,  224 
v.  R.  R.  Co.,  177 
Davy  v.  Gronow,  267 
Dawson  v.  Raynes,  274 

v.  Yates,  86,  154 
Day  v.  Croft,  26,  238,  246,  247, 

249 
Day,  Re,  179 
Dease  v.  Reilly,  257 
Defries  v.  Creed,  169,  176,  177, 

182 
De  Fuchers  v.  Dawes,  35 
De  Groot  v.  Jay,  185,  208,  235 
Delaney  v.  Mansfield,  173 

v.  Tipton,  18 

Delaware,       Lackawanna,      and 

Western  Railroad  Co.,  The,  v. 

The  Erie  Railway  Co.,  115,  279 

Delaware,  &c.  R.  R.  v.  Erie  R. 

R.,  115,  279 
Delfosse  v.  Crawshay,  223,  229 
Delia  Cainiea  v.  Hayward,  141, 

203 
Deining  v.  The  New  York  Marble 

Co.,  169 
De  Tastet  v.  Bordieu,  104 
Devendorf  v.  Dickinson,  208,  240 
Devey  v.  Thornton,  31,  32 
Devoe  v.  The  Ithaca  and  Oswego 

Railroad  Co.,  147 
Dew  v.  Clark,  32 
De  Win  ton  v.  Mayor  of  Brecon, 

68.73,  129,  181,  245,  280 
Dickens  v.  Harris,  25,  147 


TABLE    OF   CASES    CITED. 


XI 


Dillon  v.  Lord  Mountcashell,  18, 

24 
Dimes  v.  Steinberg,  32 
Dixou  v.  Smith,  186,  187 

^.Wilkinson,  223, 229, 251 
Doe  v.  Read.  215 

v.  St.  Helens,  etc.,  Railway 

Co.,  67 
Dougherty  v.  McDougald,  23 
Dowling  v.  Hudson,  148 
Dresser  vl  Morton,  160 
Drever  v.  Mawdesley,  229,  251 
Drewry  v.  Barnes,  69,  130 

r.  Darwin,  134 
Duckworth  v.  Trafford,  146 
Duffield  v.  Elwes,  209 
Duke  of  Beaufort  v.  Berty,  18 
Dorset  v.  Crosbie,  222 
Dumville  v.  Ashbrook,  71,  130 
Dunn  v.  McNaght,  90 
Durnford  v.  Lane,  210 


Eagle,  Re,  161 

Eagle  Iron  Works,  in  the  matter 

of,  138,  158,  169 
Earl  of  Lonsdale  v.  Church,  246 
Earl  Talbot  v.  Hope  Scott,  22, 

121,  122 
Eastern   Union    Railway   Co.  v. 

Hart,  74 
Edie  v.  Applegate,  9 
Edmonds  v.  Bird,  29 

v.  Crenshaw,  25 
Edwards  v.  Edwards,  36,  194 
Ellicott  v.  The  United  States  Ins. 
Co.,  58,  70,  175,  182 
v.  Warford,  175 
Emprengham  v.  Short,  190 
Estwick  v.  Conningsby,  104 
Evaus  v.  Coventry,  2,  7,  8,  9,  10, 
12,  13,21,  82,  96,  104 
v.  Mathias,  211 
v.  Taylor,   198,  202,  213, 
222 
Evelyn  v.  Evelyn,  115 

v.  Lewis,  170,  178,  183, 
185,  192,  223 
Everett  v.  Belding,  14 
v.  Neff,  184 
v.  Prythergh,  12,  24 
v.  The  State,  207 
Eyre  v.  McDonnel,  212 


Eyton  v.  Denbigh,  etc.,  Railway 
Co.,  68,  188 


Pairbairn  v.  Fisher,  24 
Fairburn  v.  Pearson,  99,  107 
Faith  c.  Dunbar,  25 
Fall  v.  Elkius,  15,  117 
Fallows  v.  Lord  Dillon,  152 
Farnham  v.  Campbell,  62 
Farquharson  v.  Balfour,  286 
Faulkner  v.  Daniel,  47,  133 
Fay  v.  The  Bank,  84 
Featherstone  v.  Cook,  66,  82 
Feistel  v.  King's  College,  132 
Fellows  v.  Herrman.  121,  226 
Ferrin  v.  Myrick.  233 
Fessenden  v.  Woods,  182 
Field  v.  Jones,  175,  181 

v.  Ripley.  147 
Finch  v.  Houghton,  44 
Fitzgerald  v.  Fitzgerald.  240 

v.  Stewart.  230 
Fitzpatrick  v.  Eyre,  205 
Fletcher  v.  Dodd,  217,  257,  258 

Ex  parte,  140 
Flight  v.  Camac,  173,  171 
Foldervy  v.  Colt,  123 
Forbes  v.  Hammond.  284 
Forgay  v.  Conrad,  149 
Forrest  v.  Elwes,  285 
Foster  v.  Foster,  260 

v.  Townsend,  225 
Fountaine  v.  Carmarthen  Railway 

Co.,  78 
Fowler  v.  Haynes,  185,  189 
Frank,  Re,  114 

Franklin  Bank,  case  of  the,  138 
Fraser  v.  Burgess,  175,  286 

v.  Kershaw,  101,  102 
Free  v.  Hinde,  88 
Freeland  v.  Stansfield,  101,  102 
Freeman  v.  Winchester,  206 
Frelinghuysen  v.  Colden,  39 
French  v.  Gifford,  147 
Fripp  v.  Bridgewater,  etc.,  Rail- 
way Co.,  177 

v.  Chard    Railway,  7,  67, 
69,  70,  71,  137,  191 
Frisbie  v.  Bateman,  42 
Furness  v.  Caterham  Railway  Co., 

72,  77 
Furlong  v.  Edwards,  10 


xn 


TABLE    OF   CASES   CITED. 


Galluchat,  Ex  parte,  25 
Galway  v.  The  United  States  Re- 
fining Co.,  84 
Gardiner  v.  Tyler,  236 
Gardner  v.  Blane,  IT,  138,  163 

v.    London,     Chatham^ 
and    Dover   Rail- 
way Co.,  67,   74, 
75,  278 
v.  Tyler,  236 
Garland   v.    Garlaud,   140,   141, 

142 
Garretson  v.  "Weaver,  92 
Gascoyne,  Be,  144 
Gelpeke  v.  Mil.  and  Hor.  R.  R. 

Co.,  169 
George  v.  Evans,  85,  124 
Getz  v.  Campbell,  191 
Gibbins  v.  Mainwaring,  148 
Gibbons  v.  Howell,  211 

v.  Fletcher,  130 
Gibson  v.  Martin,  147 
Gilletv.  Moody,  224 
Gillett  v.  Fairchild,  208 
Gilnian   v.   Green    Point   Sugar 

Co.,  83 
Givin  v.  Givin,  218 
Gladdon  v.  Stoneman,  23 
Glenn  v.  Gill,  181 
Glossup  v .  Harrison,  276 
Goniersall,  In  re,  240 
Gomme  v.  West,  185 
Gooch  v.  Haworth,  185,  186,  188 
Goode,  Re,  144 
Goodman  v.   AVhitcomb,  15,  93, 

97,  98,  103,  105 
Gouthwaite  v.  Rippon,  62 
Gowan  v.  Jeffries,  89,  91 
Gowcr  v.  Bennett,  187 
Grant  v.  Bryant,  237 

v.  The  City  of  Davenport, 
196,  207 
Gravenstinc's  Appeal,  58,  70,  147 
Gray  v.  Chaplin,  6,  7,  11,  12 
Graydon  v.  Church,  207 
Green  v.  Bostwick,  173 
v.  Green,  197 
V.  Pledger,  149 
v.  Winter,  207,  216 
Gregory  v.  Gregory,  62 
Grenfell  v.  Dean  and  Canons  of 

Windsor,  132 
Gresley  v.  Adderly,  87,  171, 173 


Greville  v.  Fleming,  3.  8 

Griffin  v.  Bishop's  Castle  Railway 

Co.,  67,  278 
Griffith  v.  Griffith,  14,  267,  272 
Groom  v.  Blake,  172 
Grote  v.  Bing,  145 

v.  Bury,  153,  154 
Guardian  Savings  Institution  v. 

Bowling  Green  Savings  Bank, 

209 
Gunn  v.  Blair,  27 
Gurden  v.  Babcock,  230,  259,  260 
Guy  v.  Ide,  43 


Hackktt  v.  Snow,  52,  152 
Hadden  v.  Spader,  62 
Hager  v.  Stevens,  84 
Haggarty  v.  Pittman,  9,  23,  81 
Haigh  v.  Grattan,  240 
Haight  v.  Burr,  10 
Haines  v.  Carpenter,  18 
Hale  v.  Hale.  105 
Halford  v.  Gillovv,  111 
Hall  v.  Hall,  92,  93,  94,  95,  104, 
106 

v.  Burt,  10,  44 

v.  Jenkinson,  85 
Hamberlain  v.  Marble,  6 
Hamill  v.  Hamill,  101 
Hamilton  v.  Brewster,  272 
v.  Lighten,  221 
v.  Transit  Co.,  83 
Hamlin  v.  Wright,  207 
Hanson  v.  "Walker,  34 
Harding  v.  Glover,  91,  99,  104 
Hardwick  v.  Hook,  207 
Hargrave  v.  Hargrave,  117 
Harrison  v.  Boydell,  2.">7,  271 

v.  Duignan,  172 
Harrup  v.  Winslet,  18 
Hart  v.  Eastern  Union  Railway 
Co.,  74 
v.  Tulk,  21,  148,  155 
Hartz  v.  Schrader,  92 
Harvey  v  A'arney,  168,  207 
Hatbornthwaitev.  Russell,  20 
Havers  v.  Havers,  21,  22 
Hawkins  v.  Gathercole,  132,  133, 

179,183,  185,  191 
Heald  v.  Hay.  130 
Henn  v.  Walsh,  103 
Henry  v.  Kaufman,  173 


TABLE    OF   CASES   CITED. 


Xlll 


Henshaw  v.  Wells,  39,  150,  153 

Her  v.  Hinde,  79 

Herbert  v.  Greene,  52 

Herman  v.  Dunbar,  244,  270 

Herricks,  Re,  274 

Hervey  v.  Fitzpatrick,  37 

Hewitt  v.  Adams,  84 

Hibbertv.  Hibbert,  163,  233 

Hicks  v.  Hicks,  17,  254,  258 

Hilles  v.  Moore,  45,  46,  47,  146, 
151,  152,  153,  154 

Hill  v.  Hibbitt,  15 
v.  Kirwan,  87 
v.  Paul.  129 
v.  Rimmell,  147,  148 
v.  Taylor,  119 

Hills  v.  Parker,  180,  203 

Hinton  v.  Galli,  134 

Hitchen  v.  Birks,  31,  34,  121 

Hobhouse  v.  Hollcombe,  199,  204 

Hobson  v.  Shearwood,  199,  201, 
203 

Hodson  v.  Watson,  134 

Hoffman  v.  Duncan,  109,  136 

Holbrook  v.  The  Receivers,  209 

Holden  v.  McMakin,  91, 101, 104, 
150 

Hollenstein  v.  Conrad,  105,  151 

Hollier  v.  Hedges,  201 

Hollis  v.  Bryant,  62 

Holmes  v.  Bell,  53 

Hooper  v.  Winston,  196 

Hope  Insurance  Co.  v.  Taylor, 
207 

Hopkins  v.  Worcester  and  Bir- 
mingham Railway  Co.,  52,  67, 
68,  73 

Horlock  v.  Smith,  171 

Horrell  v.  Witts,  101 

Hosack  v.  Rogers,  24 

Houlditch  v.  Donegal,  133,  134 

Howard  v.  Papera,  20 

Howell  v.  Ripley.  2,  52,  182 

Howe  v.  Deuel,  82 

Hoyt  v.  Thompson,  207 

Hugh  v.  McRae,  83 

Hubbard  v.  Curtis,  95 

v.  Hubbard,  57 

Hudson  v.  Plets,  128 

Hughes  v,  Hughes,  202,  203 
v.  Wheeler,  22 

Huguenin  v.  Basley,  7,  8,  85,  124, 
125 


Hull  and  Hornsea  Railway  Co., 

Re,  65 
Hungerford  v.  dishing,  147 
Hunt  v.  Priest,  185 

v.  Columbian  Ins.  Co.,  The, 
168,  207 
Hunter  v.  Pring.  167 
Hutchinson  v.  Massareene,  175, 
177 
v.     Hampton,    215, 
237 
Hutton  v.  Beeton,  256 
Hydev.  Lynd,  225 
Hyman  v.  Kelly,  39,  43 


Iddings  v.  Bruen,  207 

Imperial  Mercantile  Credit  As- 
sociations. Newryand  Armagh 
Railway  Co.,  &c,  67,  72,  77,  78 

Ireland  v.  Eade,  222,  244 
v.  Nichols,  127 


Jackltn  v.  Wilkins,  148 

Jackson  v.  De  Forest,  278 

Janeway  v.  Green,  20 

Jay,  Ex  parte,  2 

Jefferys  v.  Dickson,  38 

v.  Smith,  104,  108,  119 

Jenkins  v.  Brvant,  260 

v.  Jenkins,  4,  20,  33 

Jervis  v.  White,  146 

Jewett  v.  Miller, 227 

Johnes  v.   Claughton,  183,  185, 
187,  192 

Johns  v.  Johns,  147 

Johnson  v.  Gunter,  173 

Jolly  v.  Arbuthnot,  38,  202 

Jones  v.  Dougherty,  10,  23,  147 

Jones  v.  Frost,  34,  35 

v.  Goodrich,  29,  36 
v.  Holliday,  4,  150 
v.  Jones,  34.  35,  121 
v.  Keen,  237 
v.  Pugh,  56 

Jordan  v.  Beale,  85 

Joyce,  In  re,  2,  236 


Kaiser  v.  Kellar,  235 
Keenan  v.  Shannon,  112,  201 
Keene  v.  Riley,  56 


XIV 


TABLE    OF   CASES   CITED. 


Keep  v.  Michigan  Lake  Shore  R. 

R.  Co.,  81 
Kelley  v.  Neshanic  Mining  Co., 

84 
Kellogg.  Matter  of.  237 
Kelly  v.  Hutton,  128 
v.  Staunton,  44 
Kennedy  v.  Gibson,  207 
v.  Lee,  85 

v.  St.  Paul  R.  R.,  67 
Kenton,  Case  of,  114 
Kershaw  v.  Matthews,  105 
Keyes  v.  Brush,  23 

v.  Keys,  133,  134 
Kiffin  v.  Kiffin,  17 
Kilkenny,  Earl  of,  Re,  222 
Kincaid  v.  Dwindle,  170 
Kinderly  v.  Jervis,  65 
King  v.  Abbotson,  24 
v.  Cutts,  207 
v.  King,  29 
v.  O'Brien,  212 
Kinney  v.  Crocker,  234 
Kipp  v.  Hanna,  123,  125 
Kirby  v.  Ingersoll,  90 
Klein  v.  Jewett,  234 
Knapp  v.  AVilliams,  68,  130 
Knight  v.  Duplessis,  121 

v.  Lord  Plymouth,  227 
Knott  v.  The  Receivers  of  the 

Morris  Canal  Co.,  212 
Koontz  v.  Northern  Bank,  182, 

225 
Kuhl  v.  Martin,  57 


Ladd  v.  Harvey,  10 

Lafavette  Bank  v.  Buckingham, 

169 
La  Follet  v.  Akin,  225 
Lambery  v.  Helsham,  128 
Lancashire  v.  Lancashire,  123 
Lane  v.  Lutz,  225 

v.  Sterne,  177,  191,  193 

v.  Townsend,  273 
Langford  v.  Langford.  134 
Langham,  Re,  114,  217 
Langley  v.  Hawke,  23 
Langolf  v.  Seiberlitch,  6,  9 
Langton  v.  Langton,  50,  184 
Lansing  v.  Manton,  308 
Largan  v.  Bowen,  55.  265,  266 
Luthrop  V.  Knapp,  225 


Law  v.  Ford,  83,  91 

Lawrence  v.  The  Greenwich  Fire 

Insurance  Co.,  83,  84 
Lawson,  Ex  parte,  141 
Lechmere  Charlton's  Case,  142 

v.  Brasier,  56 
Leddels'  Extr.  v.  Starr,  18,  153 
Leeming,  Re,  144 
Lees  v.  Jones,  108 

v.  Waring.  186 
Leighton  v.  Harwood,  180 
Legg  v.  Matthieson,  70,  72,  75 
Lenox  v.  Notrebe,  6 
Leonard  v.  Storrs,  207 
Lespinasse  v.  Bell,  156 
Levi  v.  Karrick,  2 
Lewis  v.  Zouche,  54,  171,  185 
Ley  v.  Ley,  158 
Libby  v.  Rosekrans,  2 
Lilia  v.  Airey,  57 
Littleboy  v.  Spooner.  259 
Lloyd  v.  Mason,  176 

v.  Passingham,   123,    124, 
125,  153,  198 
Locke  v.  Ash,  255 
Lockey,  Re,  274 
Logan  v.  Princess  of  Coorg,  133, 

281 
Long  Branch  etc.  R.  R.,  In  re,  84, 

267 
Long  v.  Storie,  132 
Long  Wellesley's  Case,  142 
Lottimer  v.  Lord,  2 
Low  v.  Holmes,  92,  115 
Lonsdale,    Earl    of,   v.    Church, 

246 
Louisville  etc.  R.  R.  v.  Cauble, 

234 
Ludgater  v.  Channel,  260,  262 


McCarthy  v.  Peake,  147 
McDermott  v.  Kealey,  210 
McDonnell  v.  Clarke,  154,  188 
v.  White,  170,  200 
McDougald  v.  Dougherty,  147 
McEvers  v.  Lawrence,  208 
McGoldrick  v.  Slevin.  57 
Mcllarg  v.  Donelly,  225 
McLoud  v.  Phelps,  85,  175 
McMillan  v.  Richards,  38 
McNabv.  Noonan,  224,  226 
McVicker  v.  Ross,  6 


TABLE   OF    CASES   CITED. 


XV 


Mack  v.  Wetzlaf,  38 
Madgwick  v.  Wimble,  90,  104 
Maguire  v.  Allen,  146 
Major  v.  Major,,  12,  13,  35,  36 
Malcolm  v.  Montgomery,  22,  150 
v.    O'Callaghan,     240, 
245 
Mandel  v.  Peay,  20 
Manlove  v.  Burger,  206,  207 

v.  Naylor,  207 
Mann  v.  Stennett,  276 
v.  Fairchild,  226 
Manners  v.  Furze,  162,  163 
Mansfield  v.  Hamilton,  176,  215, 

216 
Mansony  v.  The  Bank,  150 
Marr  v.  Littlewood,  33,  34,  243 
Marsden  v.  Kaye,  98 
Marshall  v.  Colman,  103 

v.  Holloway,  283 
Martin  v.  Black,  184 

v.  Van  Schaick,  90,  218 
v.  Davis,  181 
Marvine    v.  Drexel's    Ex.,    119, 

225 
Massay  v.  Banner,  227 
Maund  v.  Allies,  109 
Maunsell  v.  Egan,  274 
May  hew,  In  re,  110 
Maynard  v.  Raily,  10,  105,  107 
Mays  v.  Rose,  10 
Mead  v.  Lord  Orrery,  161,  162 
Meadeu  v.  Sealey,  53,  147,  148, 

157 
Meagher  v.  O'Shaugnessy,  212 
Mears,    Administrator,    v.    Hol- 

brook,  232 
Mears  v.  Holbrook,  235 
Mechanic's  Bank  v.  Bank  of  New 

Brunswick,  249 
Merritt,  Matter  of,  177,  208,  235 
v.  Lyon,  203,  207,  208, 
235 
Metcalf  v.  Archbishop  of  York, 
88,  132,  133 
v.  Pulvertoft,  9,  10,  87, 
146 
Methodist   Episcopal   Church  v. 

Jaques,  57 
Meux  v.  Smith,  111 
Meyers  v.  Estell,  3,  39 
Micklethwaite  v.  Micklethwaite, 
9,  60 


Middleton  v.  Dodswell,  9,  18,  20, 

22,  27,  146,  154 
Middletown  v.  N.  J.  West  Line 

R.  R.,  84,  182 
Millbank  v.  Revett,  116 
Mijler  v.  Bowles,  3.  178 
v.  Elkins,  216 
v.  Jones,  101,  104,  222 
v.  Lock,  248 
v.  Loeh.  270 
Mills  v.  Fry,  205,  223 
Milwaukee  Railroad  Co.  v.  Sout- 
ter,  4,  81,  149,  266 
and  St  Paul  R.  R.  Co.  v. 
The  Milwaukee  and  Min- 
nesota  R.   R.    Co.,    13, 
178 
Mitchell   v.   The   Duke  of  Man- 
chester, 203 
Montgomery,  Re,  216,  241,  244 

v.  Merrill,  172 
Mordaunt  v.  Hooper,  124,  125 
Morgan  v.  The  Railroad  Co..  84 
Morison  v.  M orison,  240,  281 
Morris  v.  Elme.  212,  217,  283 
Moies  v.  O'Neill,  90 
Morse  v.  Brainerd,  233 
Morrison  v.  Bnckner,  43 

v.  Morrison,   240,    281, 
282,  284 
Mountford,    Ex  parte,    17,    144, 

145 
Muller  v.  Pondir,  237 
Munt  v.   Shrewsbury  &  Chester 

R.  R.  Co..  82 
Munns   v.  Isle  of  Wight  R.   R. 

Co.,  224 
Murray  v.  Yanderbilt,  83 
Murrough  v.  French,  265,  266 
Musgrove  v.  Nash,  247 
Mver   v.   Crystal    Lake   WTorks, 
193 


Nangle  v.  Lord  Fingal,  223 
National  Bank  v.  Colby,  84,  170, 

177 
National  Bank  v.  Sprague,  225 
Neale  v.  Bealing,  209 
Neall  v.  Hill,  280 
Neate  v.  Pink,  175,  219 
Neave  v.  Douglas,  237 
Newell  v.  Fisher,  207 


XVI 


TABLE    OF   CASES   CITED. 


Newman  v.  Mills,  205,  2G3 
v.  Hammond,  144 
Newport  v.  Bury,  243 
Newton  v.  Ricketts,  31,  32,  33 
New  York  Life  lus.  Co.  v.  Glass, 

3,  47 
Nichols  v.  The  Perry  Patent  Arm 

Co.,  84 
Noad  v.  Backhouse,  25,  26,  130, 

148 
Noe  v.  Gibson,  177,184,  208 
Noonan  v.  McXab,  169 
Norway  v.  Rowe,  11,  51,  108, 115 
Noyes  v.  Rich,  43,  169 
Nusbaum  v.  Stein,  147 


Oakley  v.  Patterson  Bank,  3,  83, 

150 
O'Bryan  v.  Gibbons,  91,  108 
Ogden  v.  Kip,  24 
Ogilvie  v.  The  Knox  Ins.  Co.,  67 
O'Keele  v.  Armstrong,  272,  274 
Olcott  v.  Heermans,  226,  251 
Oldfield  v.  Cobbett,  9,  20,  23,  55 
Oliver  v.  Decatur,  43 
Ormesby,  Re,  242 
Orphan  Asylum  v.  McCartee,  3. 

10,21 
Osborn  v.  Heyer,  62 
Osborne  v.  Harvey,  86,  150 
Osgood  v.  Laytin,  225 
Overington  v.  Ward,  36 
Owen  v.  Homan,  3,  6,  8,  55,  57, 

169 
O wing's  Case,  89 


Page  v.  Vankirk.  105 

Paige  v.  Smith,  279 

Palmer  v.  Bate,  129 

v.  Vaughan,  14, 129 
v.  Wright,  26,  240 

Pare  v.  Clegg,   150 

Parker   v.   Browning,   168,  177, 
178,187,197,233,235 
v.  Dunn,  222 
v.  Moore,  62 

Parkhurst  v.  Muir,  99 

Parkin  v.  Seddons,  34.  121 

Parsons    v.    The  Manufacturing 
Co.,  83 

Partridge  v.  Foster,  62,  63 


Paynter  v.  Carew,  191,  256,  266 
Peacock  v.  Peacock,  99,  105, 107 
Pell  v.  Northampton  &  Bunburg 

Junction  R.  R.  Co.,  224 
Pemberton  v.  McGill,  24 
Penn  v.  Whiteheads,  58 
Pennell  v.  Roy,  110 
People  v.  The  Bank,  169 

v.  The  Central  City  Bank, 

165 
v.  The    Mayor   of   New 

York,  127 
v.  Norton,  147 
v.  Rogers,  197 
v.  The  Third  Avenue  Sav- 
ings Bank,  138 
Perkins  v.  Deptford  Pier  Co.,  75 

v.  Fourniquet,  149 
Perrv  v.  Oriental  Hotels  Co.,  140, 

159 
Pfeltz  v.  Pfeltz,  121 
Philipps   v.   Atkinson,    99,    101, 

102 
Phipps  v.    Bishop  of   Bath  and 

Wells,  50 
Phcenix     Warehousing     Co.     v. 

Badger,  193 
Piddock  v.  Boultbee,  173,  174 
Pignolet  v.  Bushe,  115 
Pincke,  Ex  parte,  140,  141,  143 
Pitcher  v.  Helliar,  146 
Pitt  v.  Bonner,  256 

v.  Snowden,  202,  203 
Plaskett  v.  Lord  Dillon,  52,  62 
Poague  v.  Greenlee,  205 
Podmore  v.  Gunning,  28 
Ponsonby  v.  Ponsonby,  263 
Poole  v.  Ward,  161 
Porter  v.  Williams,  207,  224 
Portman  v.  Mill,  171 
Post  v.  Dorr.  52 
Postgate  v.  Barnes,  25 
Potter  v .  Bunnell,  234 
Potts  v.  Leighton,  241,  254,  257, 
259 
v.  Warwick  and  Birming- 
ham Canal  Co.,  67,  70, 
71.  72,  73,130,  138,186, 
188 
Powell,  Abram.  Case  of,  141 
Powis,  //(  re,  102 
Powys  v.  Blagrave,  89,  136,  138, 
155 


TABLE    OF   CASES   CITED. 


XV11 


Poythrees  v.  Poythrees,  24 
Prebble  v.  Boghurst,  14 
Preston  v.  Corp.  of  Gt.  Yarmouth, 

77 
Price  v.  Price,  20 
v.  White,  237 
v.  Williams,  52 
Pritchard  v.  Fleetwood,  11,  14, 

126 
Pullan  v.  Cincinnati  and  Chicago 

R.  R.  Co.,  6,  39,  81 
Purcell  v.  Woodley,  257 


Quarrell  v.  Beckford,  42,  45 
Quincy  v.  Cheeseman,  39 
Quin  v.  Holland,  268 
Quinu  v.  Britain,  45 


Radcliffe,  Ex  parte,  113,  114 
Re,  114 

Railroad  Co.  v.  Brown,  172 

Raincock  v.  Simpson,  202 

Rainsdon,  Re,  25 

Ramsbottom  v.  Freeman,  147, 148 

Ramsden  v.  Fairthorpe,  16,  118, 
155 

Randall  v.  Morrell,  100 

RandBeld  v.  Randfield,  179,  187, 
190,  197 

Rankin  v.  Harwood,  182 

Rawes  v.  Rawes,  186,  200 

Rawson  v.  Rawson,  147,  155 
v.  Raynes,  274 

Ray  v .  Macomb,  241 

Read  v.  Bowers,  96 

Receivers  v.  The  Paterson  Gas- 
light Co.,  84 

Receiver,  Spencer,  et  al.  v.  Dar- 
lington, 184 

Redmund  v.  Enfield  Manufactur- 
ing Co.,  82 
v.  Hoge,  68 

Reed  v.  Harris,  36 

Reeves  v.  Cox,  17 

v.  Neville,  263 

Reid  v.  Middleton.  53,  199,  200 
v.  Reid,  4,  150 

Rendall  v.  Rendall,  30,  31,  33 

Renton  v.  Chaplain,  101 

Republic  Ins.  Co.,  In  re,  208 

Reynolds.  Re,  144 


Rhodes  v.  Lord  Mostyn,  50,  62, 

63,  64 
Rice  v.  Tonnele,  16,  30 
Rich  v.  Loutrel,  194 
Richards  v.  Chave,  29 
v.  Perkins,  21 
v.  Richards,  186 
Richardson  v.  Ward,  264 
Riches  v.  Owen,  88,  89,  111,  112 
Rickman  v.  Johns,  72 
Ridway  v.  Roberts,  131 
Rigge  v.  Bowater,  175 
Riggs  v.  AVhitney,  201,  208 
Roberts,  Matter  of,  237 

v.  Eberhardt,  94,97,103, 
108,  120 
Robinson  v.  Hadlev,  55,  153,  154 
v.  Pett,  236 
v.  Rose,  126,  150 
v.  Smith,  82 
v.    The    Atlantic    and 
Great  Western  Rail- 
way Co.,  177,  208 
Rock  v.  Cook,  193 
Rockwell  v.  Merwin,  207 
Rogers  v.  Marshall,  121 
v.  Newton,  152; 
v.  Ross,  89 
v.  Wheeler,  233 
Root  v.  Safford,  155 
Rose  v.  Bevan,  64 
Rowe  v.  Wood,  45,  48,  49,  103, 

105, 108 
Rowlands  v.  Williams,  108,  109 
Rowth  v.  Howell,  227 
Rooth  v.  Howell,  209 
Rnggles  v.  Brock,  225 
Runk  v.  St.  John,  207 
Runyon    v.   The    Farmers'    and 

Mechanics'  Bank,  197 
Russell  v.  East  Anglian  Railway 
Co.,  76,  77,  178,  179, 
180,185,186,187,  188, 
189,  191,  193,  194 
v.  Russell,  200 
Rutherford  v.  Douglass,  32 

V.Wilkinson,  282,  284 
Ryckman  v.  Parkins,  241 


Sadijer  v.  Green,  244 
Sailing  v.  Johnson,  150 
Salt  v.  Lord  Donegal,  173 


XV111 


TABLE   OF    CASES    CITED. 


Sal  way  v.  Sal  way,  227,  228 
Sandford  v.  Ballard,  115,  116, 117 

v.  Sinclair,  147 
Sankey  v.  O'Maley,  265 
Sargent  v.  Reed,  136,  153 
Satro  v.  Wagner,  90 
Sawn  v.  Gesser,  81 
Saylor  v.  Mockbie,  9,  95,  104 
Schlecht's  Appeal,  5,  19,  32,  121 
Scott  v.  Becker,  22,  146 
v.  Hastings,  65 
v.  Platel.  136,  255,  256 
Screven  v.  Clark,  206 
Scurrah  v.  Scurrah,  115 
Sea  Insurance  Company  v.  Steb- 

bins,  39 
Seamen.  Re,  114 
Searle  v.  Smales,  115,  117 
Sedgwick  v.  Place,  20,  111 
Seibert  v .  Seibert,  105 
Seigliortner   v.  Weissenborn,  90, 

258 
Seymour  v.  Vernon,  173 
Shaftesbury,  Earl  of,  v.  Duke  of 

Marlborough,  130 
Shakel  v.  Duke  of  Marlborough,  88 
Sharp  v.  Carter,  171 
v.  Wright,  251 
v.  St.  Paul  Railway  Co.,  22 
Shaw  v.  Rhodes,  223,  229, 246, 254 
v.  Simpson,  286 
v.  Wright,  17 
Shee  v.  Harris,  127,  150,  152 
Shelly  v.  Pelham.  203 
Sheppard  v.  Oxen  ford,  22,  95, 104, 

106,  108,  109.  280,  281 
Shewell  v.  Jones,  253 
Shore  v.  Shore,  89,  246 
Shotwell  v.  Smith,  39 
Shuff  v.  Holdway,  210,  272 
Shulte  v.  Hoffman,  105 
Silver  v.  Bishop  of  Norwich,  8, 

38,  51,  60,  61,  133 
Simmons  v.  Henderson,  146 

v.  Rose,  274 
Simpkins  v.  The  Smith  &  Parme- 

lee  Gold  Co.,  135 
Simpson  v.  Roberts,  44 
Sinonen  v.  Wood,  184,  225 
Skerrett's  Minor.  229 
Skinners'  Societv  v.  Irish  Society, 

7,  8,  11,  12,  15 
Skinner  v.  Maxwell,  2,  15,  181 


Skip  v.  Harwood,  3,  171 
Slemmer's  Appeal,  97,  99 
Sloan  v.  Moore,  3,  91,  128 
Small  v.  Marwood,  19 
Smith  v.  Hurst,  62,  63,  64 

v.  Jeyes,  97,  99,  103,  104 
v.  Lord  Effingham,  54, 185, 

186 
v.  Lowe,  103 
v.  Lyster,  118,  119,  269 
v.  New  York  Stage  Co., 

169,241,278 
v.Smith,  18,19,23,26, 134 
v.  The  Metropolitan  Gas 

Light  Co.,  82 
v.  Yaughan,  264 
Sollory  v.  Leaver,  11,  42 
Speights  v.  Peters,  91 
Spencer  v.  Darlington,  220 
Sprague  v.  Smith.  233 
Stack,  Re,  190,  264 
Stafford  and  Uttoxeter  Railway 

Co.,  Re,  280 
Stainton  v.  Carron  Co.,  23 
Stairley  v.  Rabe,  20 
State  of  Illinois  v.  Dela6eld,  20 
The,  v.  The  Northern  Cen- 
tral R.  R.  Co.,  10,  67 
of  Maryland  v.  Northern 

Central  R.  R.  Co.,  51 
Bank   v.   The    Receivers, 

173,  175 
of  Tennessee  v.J.  C.  Allen, 
121 
Steele  v.  Cobham,  12,  22 
Steer  v.  Steer,  278 
Stevens  v.  Davison,  278 
Stewart  v.  Beebe,  207 
Stillwell  v.  Wilkins,  123, 124, 125, 

185 
Stilwell  v.  Mellersh,  264 
Stitwell  v.  Williams,  1 
Stone  v.  Wetmore,  129 
v,  Wishart,  140 
Story  v.  Furman,  207 
Stratton  v.  Davidson,  148 
Street  v.  Anderton,  115,  117,  118 
Sturch  v.  Young,  38,  40 
Sluyvesant  v.  Davies,  123 
Sutton  v.  Jones,  137,  138,  139 

v.  Rees,  184,  188 
Suydam  v.  North  Western    Ins. 
Co.,  62 


TABLE   OF   CASES   CITED. 


XIX 


Suydam  v.  The  Receivers,  209 
Swaby  v.  Dickon,  215,  216,  242, 

244 
Swain  v.  Smith,  272 
Swale  v.  Swale,  26 
Sweet  v.  Partridge,  56 
Swing  v.  Townsend,  150 
Sykes  v.  Hastings,  137,  138,  139, 

243 
Sylvester  v.  Reed.  62 
Symons  v.  Symons,  210 
Syracuse  Bank  v.  Tallrnan,  38,  39 

Tait  v.  Jenkins,  19 
Talbott  v.  Hope  Scott,  14,  22, 121 
Talmage  v.  Pell,  224 
Tanfield  v.  Irvine,  50,  52,  148 
Tantum  v.  Green,  63 
Tappan  v.  Grey,  129 
Tatham  v.  Parker,  189 
Taylor  v.  Allen,  24 

v.  Baldwin,  208 
v.  Emerson,  52 
v.  Gillean,  181 
v.  Oldham,  140 
Tempest  v.  Ord,  217 
Terrell  v.  Goddard,  91,  99 
Tew  v.  Lord  Winterton,  260 
Tharp,  In  re,  284 

v.  Tharp,  158 
Thomas    v.   Brigstock,   52,  172, 
173, 180,  263 
v.  Davies,  9,  151 
v.  Duwkin,  158 
Thompson  v.  Derham,  111 

v.  Diffenderfer,  10 
v.  Scott,  208 
v.  Selby,  12 
v.  Sherrard.  127 
v.  Van  Vechten,  49 
Thornhill  v.  Thornhill,  209 
Thurgood,  Ex  parte,  188 
Thurlow  v.Thurlow,  261 
Tibbals  v.  Sargeant,  11,  147 
Tidd  v.  Lister,  27 
Till,  Ex  parte.  110 
Tillinghast  v.  Champlin,  101,  207 
Tink  v.  Runkle,  192 
Todd  v.  Lee,  57 
Tomlinson  v.  Ward,   10,  91,   99, 

150,  160 
Topping  v.  Searson,  15,  56 
Towusend  v.  Somerville,  186 


Townson  v.  Tickell,  19 

Trade  Auxiliary  Co.  v.  Vichard, 

66,  82 
Transatlantic  Co.  v.  Pietroni,  13, 

28 
Triebert  v.  Burgess,  147 
Try  v.  Try,  193 
Tullet  v.  Armstrong,  3 
Tupper,  Ex  parte,  113,  145 
Turgeau  v.  Brady,  83,  147 
Turner  v.  Chrichton,  150 
v.  Major,  107 
v.  Turner,  192 
Tylee  v.  Tylee,  133,  135,  163 
Tyler  v.  Poppe,  9 

v.  Willis,  156 
Tyson  v.  Fairclough,  115, 116, 117 

Uhl  v.  Dillon,  57 

Utica  Ins    Co.,  The,   v.  Lynch, 

228,  241 
Utterson  v.  Mair,  22 

Van  Allen,  matter  of,  209 
Van  Alstyne  v.  Cook,  182 
Van  Buren  v.  The  Ins.  Co.,  237 
Vann  v.  Barnett,  146,  149 
Vance  v.  Woods,  10,  147 
Vaughan  v.  Vaughan,  165,  272 
Venet  v.  Duprez,  34 
Vermont   and  Canada  R.  R.    v. 

Vermont  Cent.  R.  R.,  178 
Verplank  v.  Caines,  4 

v.  The  Mercantile  Ins. 
Co.,  147,  171,  196 
Very  v.  Watkins,  263 
Vincent  v.  Parker,  2,  185 
Vose  v.  Reed,  6 
Voshell  v.  Hynson,  6, 10 

Wade  v.  The  American  Col.  Soc, 

150 
Wadmore  v.  Trevanion,  178 
Walker,  Ex  parte,  4,  23 
Walker  v.  Bell,  189 

v.  House,  91, 101 

v.  Morris,  21 

v.  Wild,  275 

v.  Wollaston,  29 
Wall    Street   Insurance    Co.    v. 

Loud,  44 
Wallworth  v.  Holt,  95 
Walsh  v.  Walsh,  184, 188,  189 


XX 


TABLE   OF   CASES    CITED. 


Walton  v.  Johnson,  219 
Ward,  Re,  161 

v.  Swift,    179,    192,  216, 

246,259 
v.  The  Sea  Insurance  Co., 
84 
Ware  v.  Ware,  4,  117 
Warfield  v.  Owen,  57 
Waring  v.  Robinson,  58,  91,  182 
Warner  v.   Gouverneur's   Ex'rs, 

39 
Warren,  Ex  parte,  113,  236 
v.  Fake,  82 
v.  Sprague,  241 
Wastell  v.  Leslie,  220,  252 
Waterbury  v.  Merchants'  Union 

Exp.  Co.,  81 
Waterloo  v.  Sharp,  72 
Waters  v.  Taylor,   94,  98,   217, 

278,280 
Watkins  v.  Brent,  29,  30,  31,  32 

v.  Pinkney,  177 
Weale  v.  Ireland,  240 
Weems  v.  Lathrop,  147,  257,  262, 

265 
Weguelin  v.  Lawson,  149 
Weissenborn  v.  Sieghortner,  278 
Wellman  v.  Harker,  91 
Wells  v.  Wales,  252 
Westby  v.  Westby,  25 
Whilpley  v.  The  Erie  R.  R.  Co., 

6 
Whipple,  In  re,  178 
White  v.  Baugh,  220,  229 

v.  Bishop  of  Peterborough, 

52,60,  133 
v.  James,  10,  44 
v.  Joy,  208 

v.  Snuile,  10,  11,  42,  44 
Whitehead  v.  Lynes,  256 

v.  Wooten,  41,  146, 
147 
Whitclaw  v.  Sandys,  16 
Whitely  v.  Lowe,  172 
Whiteside  v.  Prendergast,  265 
White  Water  Valley  Canal  Co. 

v.  Vallette.  67 
Whitfield,  Exparte,  144,145 
Whitworth  v.  Gaugain,  65,  127 
v.  Whyddon,  8,  9,  18, 
19,  30,  65 
Wickens  v.  Townsend,  169,  176, 
223,  230 


Wickham    v.    New    Brunswick, 

etc.,  Railway  Co.,  65,  75 
Wildridge  v.  McKane,  231 
Wildy  v.  North  Hants  Railway 

Co.,  72 
Wilkins  v.  Lynch,  211 

v.  Williams,  142,  157 
Wilkinson  v.  Bewick,  229 

v.  Colly,  215 
Williams,  Ex  parte,  102 
Williams  v.  Jenkins,  115, 147 
v.  Monroe,  151 
v.  Robinson,  43 
Williamson  v.  New   Albany  R. 
R.,  6,  81 
v.Wilson,  2,  99,  146, 
160,  274 
Willis  v.  Corlies.  9,  123 
Willoughby  v.  Willoughby,  117 
Wilmer  v.  Kidd,  194 
Wilson  v.  Allen,  225 

v.  Davis,  150,  226 

v.  Greenwood,  102,  105, 

109,  136 
v.  Poe,  140,  141,  156 
v.Wilson,  15.  22,52,  163 
Wise  v.  Beresford,  127 
Wis  wall  v.  Sampson,  51,  177 
Wood  v.  Brewer,  150 
v.  Hickings,  201 
v.    Hitchings,  11,  15,  29, 

31,  35,  156 
v.  Wood,  230 
Wooding  v.  Malone,  9 
Woods  v.  Creaghe,  276 
Woodyatt  v.  Gresley,  27,  125 

v.  Seeley,  146 
Wren  v.  Kirton,  227,  228 
Wright  v.  Merchants'  Nat.  Bank, 
84 
v.  Mitchell,  191 
v.  Vernon,  2,  9,  151,  152 
v.  Wilkins,  123 
Wrixon  v.  Vize,  172 
Wynne  v.  Griffith,  54 

v.  Lord  Ncwborough. 
142,157,210,212,213, 
216 


YK.\fiF,R  v.  Wallace,    168,   196, 

197, 206,  207 
Yctts  v.  Palmer,  25 


A  TREATISE 
ON  THE  LAW  AND  PRACTICE 


AS  TO 


RECEIVERS 

APPOINTED  BY 

THE   COURT   OF  CHANCERY. 


CHAPTER,  I. 

PRINCIPLES  ON  WHICH  A  RECEIVER  IS  APPOINTED  BY  THE 
COURT  OF  CHANCERY. 

Jurisdiction.— The  jurisdiction  of  the  Court  of  Chan- 
cery to  appoint  a  receiver  has  been  assumed  for  the 
advancement  of  justice,  and  is  founded  on  the  inade- 
quacy of  the  remedy  to  be  obtained  in  the  courts  of 
ordinary  jurisdiction. (a)  There  are  few  cases  that  can 
be  stated  in  which  the  court  has  not  jurisdiction  where 
it  is  essential  to  the  justice  of  the  case  to  interfere  by 
appointing  a  receiver.(i)  If  the  remedy  afforded  by 
the  courts  of  ordinary  jurisdiction  is  inadequate  for 
the  purposes  of  justice,  the  Court  of  Chancery  will,  on 

(a)  See  3  Akt.  564,  2  Sw.  165,         (&)  See  Bainbrigge  v.  Badde- 
Mitf.  PL  145  ;  Stitwell  v.  Wil-    ley,  3  Mac.  &  G.  419. 
Hams,  6  Madd.  49. 
1 


2  APPOINTMENT 

a  proper  case  being  made  out,  ex  debito  justitice,  appoint 
a  receiver.(c)1 

Nature  of  the  Office.— A  receiver  is  an  indifferent  per- 
son between  the  parties,  appointed  by  the  court  to  col- 
lect and  receive  the  rents,  issues,  and  profits  of  land, 
or  the  produce  of  personal  estate,  or  other  things  in 
question  pending  the  suit,  which  it  does  not  seem  rea- 
sonable to  the  court  that  either  party  should  do  ;  or 
where  a  party  is  incompetent  to  do  so,  as  in  the  case  of 
an  infant.(d)2  A  receiver  can  only  be  properly  granted 
for  the  purpose  of  getting  in  and  securing  funds  which 
this  court  at  the  hearing,  or  in  the  course  of  the  cause, 
will  have  the  means  of  distributing  among  the  persons 
entitled  to  those  fuuds.(e)3 

(c)  See   Cupit  v.  Jackson,  13        (d)  Dan.  Ch.  Pr.  1552. 
Pri.  734;  see  also  L.  R.  6  Eq.         (e)  Evans  v.  Coventry,  3  Drew. 
447,  per  Giffard,  L.  J.  80 ;  see  Wright  v.  Vernon,  lb  121. 

1  See  the  remarks  of  Chancellor  Bland  in  Williamson  v.  Wilson, 
1  Bland,  420,  421.     See  also,  Skinner  v.  Maxwell,  66  N.  C.  45. 

2  A  receiver  is  not  in  any  particular  more  bound  to  the  party 
upon  whose  motion  he  is  appointed,  than  to  any  other  party  in  the 
cause ;  he  owes  an  equal  duty  to  all  alike,  and  he  is  responsible  to 
the  court  alone.  Booth  v.  Clark,  17  Howard,  331 ;  Ex  parte  Jay, 
L.  R.  9  Ch.  133;  Loitimer  v.  Lord,  4  E.  D.  Smith,  183;  Lilly  v. 
Rosekrans,  55  Barb.  202  ;  Baker  v.  Backus,  32  111.  79 ;  Beverley 
v.  Brooke,  4  ({rattan,  208.  The  general  principles  regulating  the 
appointment  of  a  receiver,  and  the  nature  of  his  office,  are  well 
stated  in  this  last  case  by  Baldwin,  J. 

3  But  a  receiver  is  sometimes  appointed  to  take  charge  of  property 
in  which  a  stranger  to  the  cause  may  have  an  interest.  Vincent  v. 
Parker,  7  Paige,  0.  R.  65.  In  such  a  case  the  court  is  careful  to 
make  such  orders,  from  lime  to  time,  as  will  protect  the  rights  of  the 
third  party;  Id.;  and  sec  ffowell  v.  Ripley,  10  Paige,  0.  11.43; 
and  Iv    re  Joyce,  L.  B.  10   Oh.  222.     But   in  Levi  v.   Karrick,  13 


OF   RECEIVER. 


The  object  sought  by  the  appointment  of  a  receiver 
may  be  generally  described  to  be  to  provide  for  the 
safety  of  property,  pending  the  litigation  which  is  to 
decide  the  right  of  litigant  parties,(/)  or  during  the 
minority  of  infants,^)  or  to  preserve  property  iu  dan- 
ger of  being  dissipated  or  destroyed  by  those  to  whom 
it  is  by  law  entrusted,  or  by  persons  having  immediate 
but  partial  interests  therein. (A)1 

Appointment  a  Matter  of  Discretion.— The  appointment 
of  a  receiver  is  a  matter  resting  in  the  sound  discretion 
of  the  court. (i)2     In  exercising  its  discretion,  the  court 


(/)    Tullett  v.  Armstrong,  1  (li)  Mitf.  PL  133. 

Keen,  428 ;  Owen  v.  Homan,  4  (i)  Skip  v.  Harwood,  3  Atk. 

H.  L.  1032.  564 ;   Greville  v.  Fleming,  2  J. 

{g)  Dan.  Oh.  Pr.  1552.  &  L.  339. 

Withrow,  344,  it  is  said  that  when  the  rights  of  bond  fide  purchasers 
have  intervened,  the  court  will  not  appoint  a  receiver.  And  a  re- 
ceiver will  not  be  appointed  at  the  suit  of  a  mortgagee,  over  property 
which  is  in  possession  of  one  who  claims  to  hold  free  of  the  mortgage 
and  who  is  not  a  party  to  the  suit ;  N.  Y.  Life  Ins.  Co.  v.  Glass 
et  al.,  50  How.  88. 

1  "  Receivership,"  say  the  court  in  Meyers  v.  Est  ell,  48  Miss. 
401,  "  is  one  of  those  remedial  agencies  devised  originally  in  order 
to  preserve  the  fund  or  thing  from  removal  beyond  the  jurisdiction 
or  from  spoliation,  waste,  or  deterioration,  pending  the  litigation. 
This  was  the  original  purpose  ;  a  preservation  of  the  thing  so  that 
it  might  be  appropriated  as  the  final  decree  shall  appoint."  The 
custody  of  receivers  "is  that  of  the  law,  and  is  in  its  nature  pro- 
visional and  suspensive,  leaving  the  rights  of  the  parties  concerned 
to  be  controlled  by  the  ultimate  judgment  of  the  Court."  Per 
Johnson,  J.,  Court  of  Appeals,  N.  Y.,  in  Miller  v.  Bowles,  10  Nat. 
Bank.  R.  515. 

2  Copper  Hill  Mining  Co.  v.  Spencer,  25  Cal.  13 ;  Oakley  v. 
Patterson  Bank,  1  Green,  C.  R.  181 ;  Sloan  v.  Moore,  37  Penna. 
St.  R.  217  ;   The  Orphan  Asylum  v.  McCartee,  Hopkins,  429.     But 


4  APPOINTMENT 

proceeds  with  caution,  and  is  governed  by  a  view  of 
the  whole  circumstances  of  the  case.  No  positive  or 
unvarying  rule  can  be  laid  down  as  to  whether  the 
court  will  or  will  not  interfere  by  this  kind  of  interim 

this  discretion  does  not  exist  in  all  cases ;  see  Milwaukee  Rail- 
road Co.  v.  Soutter,  2  Wallace,  521.  In  this  case  a  receiver  had 
been  appointed,  by  the  Circuit  Court,  on  application  of  a  mort- 
gage creditor  of  a  railroad,  who  had  filed  a  foreclosure  bill.  The 
amount  due  for  interest  on  the  mortgage  was  afterwards  ascertained 
when  the  case  went  up  to  the  Supreme  Court  on  appeal.  After  the 
case  had  gone  back  to  the  Circuit  Court,  a  junior  mortgagee  moved 
to  discharge  the  receiver,  offering,  at  the  same  time,  to  pay  the  in- 
terest which  bad  been  ascertained  to  be  due.  The  court  refused  the 
application,  but  this  decision  was  reversed  on  appeal. 

"  The  only  doubt,"  said  Miller,  J.,  "  which  the  court  could  have  on 
the  question,  arises  from  the  principle  that  the  appointment  and  dis- 
charge of  a  receiver  are  ordinarily  matters  of  discretion  in  the  Circuit 
Court,  with  which  this  court  will  not  interfere.  As  a  general  rule, 
this  proposition  is  not  denied.  But  we  do  not  think  it  applicable  to 
the  case  before  us.  While  the  parties  to  this  suit  were  fiercely  liti- 
gating the  amount  of  the  mortgage  debt,  aud  questions  of  fraud  in 
the  origin  of  that  debt,  the  appointment  or  the  discharge  of  a  re- 
ceiver for  the  mortgaged  property  very  properly  belonged  to  the 
discretion  of  the  court  in  which  the  litigation  was  pending.  But 
when  those  questions  had  been  passed  upon  by  the  Circuit  Court 
and  by  this  court  on  appeal,  and  the  amount  of  the  debt  definitely 
fixed  by  this  court,  the  right  of  the  defendant  to  pay  that  sum,  and 
have  a  restoration  of  his  property  by  discharge  of  the  receiver,  is 
clear,  and  does  not  depend  on  the  discretion  of  the  Circuit  Court. 
It  is  a  right  which  the  party  can  claim  ;  and  if  he  shows  himself 
entitled  to  it  on  the  facts  on  the  record,  there  is  no  discretion  in  the 
court  to  withhold  it.  A  refusal  is  error — judicial  error — which  this 
court  is  bound  to  correct  when  the  matter,  as  in  this  instance,  is 
fairly  before  it."  See  also  Jones  v.  Holliday,  37  Georgia.  573  ; 
Reid  v.  Reid,  38  Id.  29  ;  Crawford  v.  Ross,  39  Id.  44  ;  Ware  v. 
Ware,  42  Id.  408;  Jenkim  v.  Jenkins,  1  Paige,  C.  B.  24:?;  /•:.»■ 
parte  Walker,  25  Alab.  81.  In  some  cases  the  propriety  of  appoint- 
ing a  receiver  cannot  be  determined  until  the  hearing — sec  Verplank 
v.  Caines,  1  Johns.  <'.  If.  57,  where  a  demurrer  to  a  bill  praying  for 
a  receiver  was  overruled. 


OF   RECEIVER.  5 

protection  of  the  property.  Where,  indeed,  the  pro- 
perty is  as  it  were  in  medio,  in  the  enjoyment  of  no 
one,  the  court  can  hardly  do  wrong  in  taking  posses- 
sion. It  is  the  common  interest  of  all  parties  that  the 
court  should  prevent  a  scramble.  Such  is  the  case 
where  the  receiver  of  property  of  a  deceased  person  is 
appointed  pending  a  litigation  as  to  the  right  of  pro- 
bate or  administration.  !No  one  is  in  the  actual  enjoy- 
ment of  property  so  circumstanced,  and  no  wrong  can 
be  done  to  any  one  by  taking  and  preserving  it  for  the 
benefit  of  the  successful  litigant.  But  where  the  ob- 
ject of  the  plaintiff  is  to  assert  a  right  to  property  of 
which  the  defendant  is  in  enjoyment,  the  case  is  neces- 
sarily involved  in  farther  questions.  The  court  by 
taking  possession  at  the  instance  of  the  plaintiff  may 
be  doing  a  wrong  to  the  defendant ;  in  some  cases  an 
irreparable  wrong.  If  the  plaintiff  should  eventually 
fail  in  establishing  his  right  against  the  defendant, 
the  court  may  by  its  interim  inteference  have  caused 
mischief  to  the  defendant,  for  which  the  subsequent 
restoration  of  the  property  may  afford  no  adequate 
compensation.1  In  all  cases,  therefore,  where  the  court 
interferes  by  appointing  a  receiver  of  property  in  the 
possession  of  the  defendant,  before  the  title  of  the 
plaintiff  is  established  by  decree,  it  exercises  a  discre- 
tion to  be  governed  by  all  the  circumstances  of  the 
case.  "Where  the  evidence  on  which  the  court  is  to  act 
is  very  clear  in  favor  of  the  plaintiff,  there  the  risk  of 
eventual  injury  to  the  defendant  is  very  small,  and 

1  See  Schlecht's  Appeal,  60  Penna.  St.  R.  176,  and   Chap.  II. 
Sect.  14,  infra. 


6  APPOINTMENT 

the  court  does  not  hesitate  to  interfere.  Where  there 
is  more  of  doubt,  there  is  of  course  more  of  difficulty. 
The  question  is  one  of  degree,  as  to  which,  therefore, 
it  is  impossible  to  lay  down  any  precise  or  unvarying 
rule.^)1 

Principles  which  Govern  the  Discretion  of  the  Court.— 
The  duty  of  the  court  upon  a  motion  for  a  receiver  is 

(k)  Owen  v.  Homan,  4  H.  L.  1032,  per  Lord  Cranworth ;  see 
Gray  v.  Chaplin,  2  Russ.  145. 

1  Where  one  party  has  a  clear  right  to  the  possession  of  property 
and  where  the  dispute  is  as  to  the  title  only,  the  court  would  very 
reluctantly  disturb  that  possession.  But  when  the  property  is  ex- 
posed to  danger  and  to  loss,  and  the  party  in  possession  has  not  a 
clear  legal  right  to  the  possession,  it  is  the  duty  of  the  court  to 
interfere  and  have  it  secured  by  appointing  a  receiver.  Lenox  v 
Notrebe,  1  Hempstead,  225.  See  also  Hamberlain  v.  Marble,  24 
Miss.  586.  Such  an  appointment  is  a  strong  measure,  and  is  not  to 
be  exercised  doubtingly.  Chicago  Co.  v.  U.  S.  Pet.  Co.,  57  Penna.  St. 
R.  83;  Langolf  Seiberlitch,  2  Pars.  Eq.  Cas.  79,  80;  Blondheim  v. 
Moore,  11  Maryl.  365-374,  376  ;  Voshell  v.  Hynson,  26  Marly.  83 ; 
Pullan  v.  Cincinnati  Sf  Chicago  R.  R.  Co.,  4  Biss.  47 ;  Williamson 
v.  New  Albany,  SfC,  R.  R.,  1  Id.  198 ;  Beecher  v.  Bininger,  7  Blatch. 
170 ;  Whilpley  v.  The  Erie  R.  R.  Co.,  6  Id.  271 ;  Mc  VicTcer  v.  .Ross, 
55  Barbour,  248.  "  All  the  circumstances  of  the  case  are  to  be  taken 
into  consideration,  and  if  the  case  be  such  that  a  greater  injury  would 
come  from  the  appointment  of  a  receiver  than  from  leaving  the  pro- 
perty in  the  hands  now  holding  it,  or  if  any  other  considerations  of 
propriety  or  conveniency  render  the  appointment  of  a  receiver  im- 
proper or  inexpedient,  none  will  be  appointed.  In  this  case  the 
trustees  having  possession  of  the  trust  fund  and  property  arc  public 
officers  of  the  State  and  trustees  ex  officio.  .  .  .  The  State  has  a 
great  interest  in  the  trust.  .  .  These  public  and  political  objects 
of  the  trust  make  it  extremely  fitting  that  the  chief  executive  officers 
of  the  State  should  administer  the  fund.  And  it  must  be  a  very 
strong  case  indeed  which  will  induce  the  Court  to  take  the  property 
out  of  their  hands  and  put  it  into  the  hands  of  its  own  officers.  .  .  . 
The  motion  for  a  receiver  is  therefore  denied."  Per  Bradley,  J.,  in 
Vose  v.  Reed,  1  Woods,  647,  650,  651,  652. 


OF    KECEIVER.  I 

merely  to  protect  the  property  in  the  mean  time  for 
the  benefit  of  those  persons  to  whom  the  court  at  the 
hearing  of  the  cause,  when  it  will  have  before  it  all 
the  evidence  and  materials  necessary  for  a  determina- 
tion, shall  think  it  properly  belongs.(7)  On  motion 
for  a  receiver,  the  court  will  not  prejudice  the  cause.(w) 
The  court  does  not  in  appointing  a  receiver  say  what 
view  it  shall  take  at  the  hearing.(??)  On  motion  for  a 
receiver,  the  court  has  not  to  consider  the  question  of 
what  may  be  the  result  at  the  hearing,  nor  whether 
the  time  may  not  come  when,  on  a  different  state  of 
things,  the  court  would  appoint  a  receiver.(o)  In  deal- 
ing with  the  application,  the  court  is  bound  not  to  go 
out  of  its  way  in  order  to  give  the  plaintiff  an  oppor- 
tunity of  obtaining  previously  to  the  hearing  the 
opinion  of  the  court  upon  the  subject-matter  of  the 
suit.1  The  court  is  bound  to  express  its  opinion  only 
so  far  as  it  is  necessary  to  show  the  grounds  on  which 
the  interlocutory  motion  is  disposed  of.  It  is  the 
duty  of  the  court  to  confine  itself  strictly  to  the  point 
upon  which  it  is  called  upon  to  decide,  and  not  to  go 
into  the  merits  of  the  case.(^)     The  court  will  give  no 

(l)   Blakeney    v.  'Dufaur,   15  (o)  Gray  v.  Chaplin,  2  Euss. 

Beav.  42.  141. 

(m)  Huguenin  v.  Baseley,  13  (p)  Skinners'  Society  v.  Irish 

Ves.  107.  Society,   1    M.   &    C.    164;    see 

(n)  Fripp  v.  Chard  Railway  Evans  v.  Coventry,  5  D.  M.  & 

Co.,  11  Ha.  2G4.  G.  918 ;  Blakeney  v.  Dufaur,  15 

Beav.  42. 

1  The  appointment  of  a  receiver  determines  nothing  as  to  the  title 
to  the  subject-matter  of  the  cause.  In  the  matter  of  Rachel  Colvtn, 
3  Maryl.  Ch.  Decis.  278-302 ;  Chase's  Case,  1  Bland,  206-213  ; 
Beverley  v.  Brooke,  4  Grattan,  208. 


8  APPOINTMENT 

encouragement  to  any  attempt  to  obtain  its  decision 
on  important  questions  before  the  hearing.^)  The 
court  will  not,  indeed,  appoint  a  receiver  at  the  in- 
stance of  a  person  whose  right  is  disputed,  where  the 
effect  of  the  order  would  be  to  establish  the  right, 
even  if  the  court  be  satisfied  that  the  person  against 
whom  the  demand  is  made  is  fencing  off  the  claim. (r) 
In  determining  whether  it  shall  appoint  a  receiver, 
the  court  deals  with  the  case  as  it  appears  upon  the 
pleadings  and  evidence,  and  stands  on  the  record. (s) 
If  the  court  is  satisfied  upon  the  materials  it  has  before 
it  that  the  relief  prayed  by  the  bill  will  be  given  when 
a  decree  is  pronounced,  and  that  it  is  necessary  or  ex- 
pedient to  secure  the  property  until  the  hearing,  there 
is  a  case  for  the  appointment  of  a  receiver.(^)  If  it 
appears  to  the  court  that  the  plaintiff  has  established 
a  good  'prima  facie  equitable  title,  and  that  the  pro- 
perty, the  subject-matter  of  the  suit,  is  in  danger  if 
left  in  the  possession  of  the  party  against  whom  the 
receiver  is  prayed  until  the  hearing,^)  or,  at  least, 
that  there  is  reason  to  apprehend  that  the  plaintiff 
will  be  in  a  worse  situation  if  the  appointment  of  a 


(q)  Bates  v.  Brothers,  2  Eq.  (t)   Huguemn  v.  Baseley,  13 

327.  Yes.  107 ;  Davis  v.  DuJce  of  Marl- 

(r)   Greville  v.  Fleming,  2  J.  borough,  2    Sw.   138 ;    Clegg  v. 

&  L.  335.  Fishwick,  1   Mac.   &   G.    299 ; 

(s)  Silver  v.  Bishop  of  Nor-  Witioorth  v.  Wliyddon,  2  Mac. 

ivich,  3  Sw.  116  n. ;    Skinners'  &  G.  55 ;    Owen  v.  Homan,  3 

Society  v.  Irish  Society,  1  M.  &  Mac.   &  G.  412,  4  H.  L.  1033. 

C.  164  ;  Evans  v.  Co ventry,  5  D.  (u)  Evans  v.  Coventry,  5  D. 

M.  &  G.  918.  M.  &  G.  918. 


OF    RECEIVEK. 


receiver  be  delayed,(x)  the  appointment  of  a  receiver 
is  almost  a  matter  of  course. (y)1  If  there  is  no  dan- 
ger to  the  property,  and  no  fact  is  in  evidence  to  show 
the  necessity  or  expediency  of  appointing  a  receiver, 
a  receiver  will  not  be  appointed,  unless  there  be  some 
other  equity  in  the  case  to  support  the  application.^)2 
The  mere  allegation  of  danger  to  the  property  is  not 
sufficient,  if  the  court  is  satisfied  that  no  loss  need  be 
apprehended. (a)  If,  however,  it  be  the  true  and  ne- 
cessary result  of  the  pleadings  as  they  stand,  that  the 


{x)  Aberdeen  v.  Chitty,  3Y.  2  Mac.  &  G.  55;  Wright  v.  Ver- 

&  C.  382  ;  Thomas  v.  Davies,  11  non,  3  Drew.  121 ;  MicMethioaite 

Beav.  29;  see  Metcalfe  v.  Pul-  v.  Micklethwaite,  1  D.  &  J.  530; 

vertoft,  1  V.  &  B.  180.  Bowker  v.  Henry,  6  L.  T.  N.  S. 

(y)  See  Middleton  v.  Dodswell,  43. 

13  Ves.  266;  Oldfieldv.  Cobbett,  (a)    Witworth  v.     Wlxyddon 

4  L.  J.  Ch.  N.  S.  272.  2  Mac.  &  G.  55. 

(z)   Whitivorth  v.    Whyddon, 

1  In  Iowa  it  is  expressly  provided  by  statute  that  where  a  party 
to  civil  action  shows  a  probable  right  to  the  subject  matter  of  the 
litigation,  aud  that  the  property  would  be  jeopardized  by  remaining 
in  the  custody  of  the  adverse  party,  a  receiver  shall  be  appointed. 
Revised  Laws  of  Iowa,  622  (Section  1656  of  the  Code).  And  see 
Saylor  v.  Mockbie,  9  Iowa,  209.  So,  too,  by  the  California  Code; 
"  where  a  prima  facie  right  is  established,  and  the  property  is  in 
danger,"  a  receiver  may  be  appointed.     "Wood's  Digest,  185. 

2  Baker  v.  Backus,  32  111.  79-95.  The  fact  that  the  fund  is  in 
danger  is  not  of  itself  sufficient ;  the  party  in  possession  of  the  pro- 
perty must  be  irresponsible.  Willis  v.  Corlies,  2  Edwards,  C.  R.  281, 
286-7  ;  Tyler  v.  Poppe,  4  Id.  430 ;  Langolf  v.  Seiberlitch,  2  Pars. 
Eq.  Cas.  79-80;  Clark  v.  Ridgely,  1  Maryl.  Ch.  Dec.  70;  Blondheim 
v.  Moore,  11  Maryl.  365-374 ;  Wooding  v.  Malone,  30  Georgia, 
979 ;  see  also  Burt  v.  Burt,  41  New  York,  46  ;  Haggarty  v.  Pitt- 
man,  1  Paige,  C.  R.  298  ;  Gofer  v.  Echerson,  6  Iowa,  502  ;  and  Edie 
v.  Applegate,  14  Iowa,  273. 


10  APPOINTMENT 

property  is  in  danger  or  that  loss  may  be  apprehended, 
there  is  a  case  for  a  receiver.(6)1 

It  is  not,  however,  necessary,  to  entitle  a  party  to 
the  appointment  of  a  receiver,  that  the  property  in 
question  should  appear  to  be  in  danger  unless  the  ap- 
pointment be  made.  It  is  enough  that  a  good  equi- 
table title  be  made  to  appear,  and  that  the  remedy  at 
law  should  not  fulfil    the  requisition  of  justice. (c)     A 

(b)  Evans  v.  Coventry,  5  D.  Pri.  734;  White  v.  Smale,  22 
M.  &  G.  917  ;  see  Metcalfe  v.  Pal-  Beav.  73 ;  White  v.  James,  26 
vertoft,  1  V.  &  B.  180.  Beav.  191 ;  Hall  v.  Burt,  2  J.  & 

(c)  See  Cupit  v.  Jackson,  13  H.  76  ;  supra,  p.  1. 

1  In  Blondheim  v.  Moore,  11  Maryland,  364  (a  leading  case) ,  it 
was  said  that  the  authorities  upon  the  subject  established  the  follow- 
ing propositions : — 

1st.  The  power  of  appointment  is  a  delicate  one,  and  to  be  exer- 
cised with  great  circumspection. 

2d.  It  must  appear  that  the  claimant  has  a  title  to  the  property, 
and  the  court  must  be  satisfied  by  affidavit  that  a  receiver  is  necessary 
to  preserve  the  property. 

3d.  There  is  no  case  where  the  court  appoiuts  a  receiver  merely 
because  the  measure  can  do  no  harm. 

4th.  Fraud  or  imminent  danger,  if  the  intermediate  possession 
should  not  be  taken  by  the  court,  must  be  clearly  proved. 

5th.  Unless  the  necessity  be  of  the  most  stringent  character,  the 
court  will  not  appoint  until  the  defendant  is  first  heard  in  response  to 
the  application. 

These  rules  were  approved  and  followed  in  Voshell  v.  Hynson,  26 
Maryland,  83.  See  also  The  State  v.  The  Northern  Central  R.  B. 
Co.,  18  Id.  193  ;  llaight  v.  Burr,  19  Id.  134  ;  Furlong  v.  Edwards, 
3  Id.  99  ;  Thompson  v.  Diffcndtrfer,  1  Maryl.  Ch.  Decis.  489 ;  Tom- 
linson  v.  Ward,  2  Connecticut,  391;  The  Orphan  Asylum  v. 
McCartee,  Hopkins,  429;  Mays  v.  Rose,  1  Freeman  (Chan.),  703; 
Vance  v.  Woods,  46  Miss.  120;  Coddington  v.  Tappan,  11  C.  E. 
Green,  141 ;  Ladd  v.  Harvey,  1  Foster,  514  ;  Maynard  v.  Raily,  2 
Nevada,  313;  Jones  v.  Dougherty,  10  Georgia,  281  ;  Crawford  v. 
Ross,  39  Georgia,  44;  Crane  v.  McCoy,  1  Bond,  422. 


OF   RECEIVER.  11 

receiver,  accordingly,  may,  on  a  proper  case  being  made 
out,  be  appointed  to  raise  the  arrears  of  an  anuity,(e£) 
or  a  rent-charge  ;{e)  so,  also,  an  equitable  mortgagee 
may  have  a  receiver  appointed  if  the  payment  of  in- 
terest on  his  security  be  in  arrear  ;(/)  so,  also,  if  a 
person  takes  the  conveyance  of  a  legal  estate,  subject 
to  equitable  interests,  he  must  satisfy  these  equitable 
interests,  or  submit  to  the  appointment  of  a  receiver.^/) 

Conduct  of  the  Party  who  makes  the  Application  looked 
to.— The  court,  on  the  application  for  a  receiver,  always 
looks  to  the  conduct  of  the  party  who  makes  the  ap- 
plication, and  will  refuse  to  interfere  unless  his  con- 
duct has  been  free  from  blame.(/i)  Parties  who  have 
acquiesced  in  property  being  enjoyed  against  their 
own  alleged  rights  cannot  come  to  the  court  for  a 
receiver.(z)1 

Pleading,  Parties,'&c.— The  record  should  be  in  such  a 
state  as  will  enable  the  judge  to  determine  who  is  to 
take  out  of  court  the  fund  which  the  appointment  of 
the  receiver  shall  have  brought  into  court.(&)     But  if 

{d)  See  Cupit  v.  Jackson,  13  L.  J.  Ch.  169.     Comp.  Wood  v. 

Pri.  734.    [Sollory  v.  Leaver,  L.  Hitchings,  2  Beav.  297. 

&.  9  Eq.  22. J  (i)  Norway  v.  Rowe,  19  Ves. 

(e)    White  v.  Smale,  22  Beav.  144;   Gray  v.   Chaplin,  2  Russ. 

73;  infra,  p.  44.  147  ;  Skinners'  Society  v.  Irish 

(/)  Infra,  Chap.  II.  Sect,  4.  Society,  1  M.  &  C.  162. 

(g)  Pritchard  v.  Fleetivood,  1  (k)   Gray  v.  Chaplin,  2  Russ. 

Mer.  54.  147. 

(h)   See  Baxter  v.   West,  28 

1   Tibials  v.  Sargeant,  1  AlcCart.  449. 


12  APPOINTMENT 

the  court  sees  that  there  is  a  case  upon  the  record  for 
the  appointment  of  a  receiver,  it  is  no  sufficient  an- 
swer that  the  record  is  not  perfect  as  to  particulars, 
and  is  not  in  the  shape  in  which  the  court  may  find  it 
necessary  that  it  should  be  placed  in  order  to  admin- 
ister complete  justice.  If  the  objection  is  a  formal 
one,  and  such  as  may  be  removed  by  amendment,  it 
will  not  stay  its  hand  on  account  of  any  such  objec- 
tions. Objections  to  the  bill  on  the  ground  of  mis- 
joinder, multifariousness,  or  want  of  parties,  are  no 
answer  on  the  application  for  a  receiver,  if  a  case  for 
the  appointment  of  a  receiver  be  shown. (I) 

If  the  subject  of  the  suit  in  respect  of  which  a  re- 
ceiver is  sought  is  a  matter  of  public  interest,  the  At- 
torney-General should  be  made  a  party. (m) 

When  the  original  bill  had  been  answered,  it  was 
held  that  the  pendency  of  a  plea  to  the  amended  bill 
did  not  prevent  a  motion  for  a  receiver.(?z) 

If  certain  statements  in  the  bill  and  affidavits  are 
relevant  to  the  relief  asked,  the  court  will  not  on  mo- 
tion allow  exceptions  to  be  taken  to  them.(o)  Where, 
for  instance,  on  bill  for  a  receiver  alleging  that  the 
executor  was  of  bad  character  and  drunken  habits,  the 
court  would  not,  on  the  motion  for  a  receiver,  allow 
exceptions  for  scandal  and  impertinence.^) 

(/)  Evans  v.  Coventry,  5  D.  M.  (n)  Thompson  v.  Selhy,  12  Sim. 

&  G.  918 ;  Steele  v.  Cobham,  L.  100. 

R.  1  Ch.  App.  325  ;  see  Major  v.  (o)  Everett  v.  Prythergh,  12 

Major,  8  Jur.  799.  Sim.  365. 

(m)  Gray  v.  Chaplin,  2  Ituss,  (p)  Ibid. 
147 ;  Skinners'  Society  v.  Irish 
Society,  1  M.  &  C.  162. 


OF   RECEIVER.  13 

If  a  reeeiver  is  asked  for  generally,  the  court  may 
grant  the  prayer  as  far  as  is  proper,  or  in  a  limited 
form.(<7) 

Receiver  Appointed  pending  Litigation  in  a  foreign 
Court— The  court  has  jurisdiction  to  appoint  a  re- 
ceiver pending  litigation  in  a  foreign  court.(r)1 

Order  for  Receiver  operates  as  an  Injunction.— The 
appointment  of  a  receiver  operates  as  an  injunction. 
An  order  for  an  injunction  is  always  more  or  less  in- 
cluded in  an  order  for  a  receiver.2  It  is  not  necessary, 
if  a  receiver  he  appointed,  to  go  on  and  grant  an  in- 
junction in  terms ;  but  in  cases  where  persons  in  a 
fiduciary  character  have  misconducted  themselves,  the 
court  will  often  grant  an  injunction  as  wellas  a  re- 
ceiver, not  because  an  injunction  is  necessary  to  pre- 
vent a  party  from  receiving,  when  a  receiver  is  once 
appointed,  but  for  the  purpose  of  marking  its  sense  of 
the  conduct  of  the  parties  who  have  misconducted 
themselves.(s) 

(q)  Major  v.  Major,  8  Jur.  (s)  Evans  v.  Coventry,  3  Drew. 
799.  82. 

(?•)   Transatlantic  Co.  v.  Pie- 
troni,  John.  607. 

1  The  court  will  not  appoint  a  receiver  over  property  which  is 
already  in  the  custody  of  a  proper  tribunal.  See  Alabama  Sf  Chat- 
tanooga R.  R.  Co.  v.  Jones,  7  Nat.  Bank.  R.  145-169  ;  Blake  v. 
The  Alabama  §•  Chattanooga  R.  R.  Co.,  7  Id.  331-335  ;  The  Mil- 
waukee &  St.  Paul's  R.  R.  Co.  v.  Tlie  Mihvaukee&  3Iinnesota  R. 
R.  Co.,  20  Wisconsin,  165. 

2  See,  however,  Boyd  v.  Murray,  3  Johns.  C.  R.  48. 


14  APPOINTMENT 

Receiver  not  Appointed  if  Defendant  submits  to  a  cer- 
tain Order.— The  court  may  abstain  from  appointing  a 
receiver  on  the  submission  of  the  defendant  to  submit 
to  a  certain  order,(0  to  pay  the  moneys  into  court,(w) 
or  to  deal  with  the  moneys  as  the  court  shall  direct.^) 

"What  the  Order  for  a  Receiver  Directs.— The  order  ap- 
pointing a  receiver  should  state  distinctly  on  the  face 
of  it  over  what  property  the  receiver  is  appointed,(y) 
or  else  refer  to  the  pleadings  or  some  document  in  the 
cause  which  describes  the  property.(^)  It  usually 
directs  the  receiver  to  pass  his  accounts  from  time  to 
time,  and  to  pay  the  balances  found  due  from  him  into 
court  to  the  credit  of  the  cause,  to  be  there  invested 
and  accumulated,  or  otherwise,  as  may  be  directed. (a) 

If  the  appointment  of  a  receiver  is  over  real  or  lease- 
hold estate,  the  order  usually  directs  the  parties  to  the 
record  who  are  in  possession,  not  as  tenants  but  as 
owners,  to  deliver  up  to  him  the  poSSession.(6) 

If  tenants  are  in  possession  of  real  or  leasehold 
estates  over  which  a  receiver  is  appointed,  the  order 
should  direct  them  to  attorn,  and  pay  their  rents  in 

(t)  Pritchard  v.  Fleetwood,  1  (z)  Set.  on  Deer.  1005. 

Mer.  54.  (a)  Set.  on  Deer.  1002  ;   Dan. 

(u)  Prebble     v.  Boghurst,    1  Oh.  Pr.  1573. 

Sw.  313 ;  Curling  v.  Lord  Town-  (b)   Griffith  v.  Griffith,  2  Ves. 

shend,  19  Ves.  633;  Palmer  v.  401;  Everett  v.Belding,  22  L.J. 

Vaughan,  3  Sw.  173.  Ch.  75,  1  W.  R.  44;   see  as  to 

(x)   Talbolt  v.  Hope  Scott,  4  K.  form  of  order,  Davis  v.  Duke  of 

&  J.  141.  Marlborough,  2   Sw.   108,  116 ; 

(y)   Crow  v.  Wood,  13  Beav.  Baylies  v.  Baylies,  1  Coll.  548; 

271.  Set.  on  Deer.  1023. 


OF    RECEIVER.  15 

arrear  and  the  growing  rents  to  the  receiver,(c)  but  this 
direction  should  be  omitted  when  the  estates  are  out 
of  England.^ 

If  the  property  over  which  a  receiver  is  appointed 
is  outstanding  personal  estate,  the  order  should  direct 
the  parties  in  possession  of  such  estate  to  deliver  over 
to  the  receiver  all  such  estate,  and  also  all  securities  in 
their  hands  for  such  estate  or  property,  together  with 
all  books  and  papers  relating  thereto.(e)1 

Costs  of  Motion.— The  court  may,  at  its  discretion, 
deal  with  the  costs  of  the  motion  for  a  receiver  at  the 
time  of  the  application^/)  or  the  costs  of  the  applica- 
tion may  be  ordered  to  be  costs  in  the  cause.Q/) 

The  costs  of  the  motion  for  a  receiver  are  sometimes 
reserved  until  the  hearing,(A)  even  although  the  appli- 
cation is  refused. (i) 

(c)  Set.  on  Deer.   1002,  1012  4  Jur.  858;  Skinners'  Society  v. 

et  seq. ;   see,  as  to  form  of  order,  Irish  Society,  1  M.  &  C.  169: 

ib.  Fall  v.  Elkins,  9  W.  R.  861. 

(rf)   Ib.  1007,  1039.  (g)  Topping  v.  Searson,  6  L.  T. 

(e)  Set.  on  Deer.  1002,  1030,  N.  S.  450;    Fall   v.   Elkins,  9 

1031.     If  necessary,  a   receiver  W.  R.  861 ;  Bowker  v.  Henry,  6 

will  be  ordered  to  keep  separate  L.  T.  N.  S.  43 ;  see  Morg.  &  Dav. 

accounts   of   real    and    personal  on  Costs,  31,  32. 

.  estates.     Hill  v.  Htbbitt,  18  L. T.  (h)   Chaplin  v.  Young,  6  L.  T. 

N.  S.  553.  N.  S.  97. 

(/)   Goodman  v.  Whitcomb,  1  (i)  Baxter  v.    West,  28  L.J. 

J.  &  W.  593 ;    Wilson  v.  Wilson,  Ch.  169  ;    Coope  v.  Creswell,  21 

2  Keen,  249 ;  Wood  v.  Hitchings,  W.  R.  299. 

1  For  forms  of  orders  appointing  receivers,  see  Appendix. 


CHAPTER  II. 

IN  WHAT  CASES  A  RECEIVER  WILL  BE  APPOINTED. 


SECTION  I. — IN  THE  CASE  OF  INFANTS. 

The  court  will,  upon  a  proper  case  being  made  out, 
protect  the  estate  of  an  infant  by  appointing  a  re- 
ceiver.^)1 ^Vhere  infants  are  concerned,  the  court 
considers  chiefly  what  would  be  most  beneficial  to 
their  interests.(i)  The  court  will  protect  the  estate  of 
an  infant,  even  against  his  father.(V)  If  an  infant  has 
or  becomes  possessed  of  an  estate,  a  receiver  will  be 
appointed  if  it  appear  that  his  father  is  insolvent  or 

(«)  Butler  v.  Freeman,  Arab.  1  X.  R.  389;  see  Whitelaw  v. 
303.  Sandys.  12  Ir.  Eq.  393. 

(b)  Eamsden  v.  Fatrthorpe,        (c)  Butler  v.  Freeman,  Amb. 

303. 


'  Iu  Rice  v.  Tonnele.  4  Sandf.  C.  R.  §68,  the  validity  of  a  will  was 
being  contested,  and  an  active  litigation  thereon  was  pending.  An 
infant  to  whom  an  annuity  had  been  bequeathed  by  the  testator, 
and  who.  in  the  event  of  the  will  being  set  aside,  was  entitled,  as 
heir,  to  one-fourth  of  the  estate,  filed  a  bill  praying  that  maintenance 
might  be  furnished  to  her  out  of  the  estate,  and  asking  that  a 
receiver  should  be  appointed  to  that  end.  It  also  appeared  that, 
owing  to  her  pecuniary  condition,  maintenance  was  necessary.  It 
was  held  that  the  bill  was  properly  filed,  and  that  maintenance 
ought  to  be  allowed  to  the  infant,  to  an  amount  not  exceeding  the 
annuity;  and  that,  if  necessary  to  carry  out  the  decree,  a  receiver 
ought  to  be  appointed. 


INFANTS.  17 

of  bad  character,  or  that  there  is  clanger  of  the  rents 
being  lost.(Y/)  In  a  case  where  the  mother  of  infants 
was  dead,  and  the  father  was  a  man  of  irregular  habits 
who  had  married  his  servant,  the  minors  being  entitled 
to  real  estate  in  right  of  their  mother,  a  receiver  was 
appointed.(e) 

If  there  be  no  testamentary  guardian  appointed  by 
the  testator,(/)  or  if  the  testamentary  guardian  ap- 
pointed by  the  will  declines  to  act,(#)  a  receiver  will 
be  appointed  on  a  proper  case  being  made  out.  The 
appointment,  however,  of  a  testamentary  guardian  of 
an  infant  by  his  father  does  not,  under  stat.  12  Car.  2, 
c.  24,  constitute  any  objection  to  the  appointment  of  a 
receiver  of  the  estate  of  the  infant.  The  exercise  by 
the  father  of  an  infant  of  the  power  given  by  the 
act  to  appoint  a  testamentary  guardian,  to  whom  the 
statute  gives  the  custody  of  the  profits  of  the  infant's 
lands,  and  the  management  of  his  personal  estate,  does 
not  affect  the  right  of  the  court  to  appoint  a  receiver, 
the  guardian  having  no  estate,  and  the  extent  of  his 
powers  being  uncertain. (A)  Guardians  appointed  by 
will  under  the  statute,  have  no  more  power  than 
guardians  in  socage,  and  are  but  trustees.  If  it  be 
made  to  appear  that  the  estate  of  an  infant  is  likely 
to  suffer  by  the  conduct  of  his  guardian,  the  court 
will  interpose  and  appoint  a  receiver,  upon  the  same 

(a7)  Kiffin  v.  Kiffin,  cited   1  (/)  Hicks  v.  Hicks,  3   Atk. 

P.W.704;  Ex  parte  Mountfort,  273. 

15  Yes.  449  n.  (g)  Bridges  v.  Hales,  Mose> 

(e)  Re    Cormicks,   2    Ir.    Eq.  111. 

264.  (/t)   Gardner  v.  Blane,  1  Ha. 


2 


381. 


18  EXECUTORS 

principles  upon  which  it  interposes  in  the  case  of 
trustees  and  executors.(z')  In  a  case,  accordingly, 
where  the  mother  of  infant  children,  who  had  been 
appointed  by  her  husband  executrix  and  guardian  of 
the  children,  married  a  man  in  necessitous  circum- 
stances, a  receiver  was  appointed.(Z;) 


SECTION  II. — IN  THE  CASE  OF  EXECUTORS  AND  TRUSTEES. 

Receiver  not  Appointed  on  Slight  Grounds.— The  court 
will,  upon  a  proper  case  being  made  out,  dispossess  an 
executor  or  trustee  of  the  trust  estate  by  appointing  a 
receiver,  but  it  will  not  do  so  upon  slight  grounds.1 
It  is  for  the  testator  or  creator  of  the  trust,  and  not  for 
the  court,  to  say  in  whom  the  trust  for  the  administra- 
tion of  the  property  shall  be  reposed.  Though  a  suit 
be  instituted  by  a  party  having  an  interest  in  the 
estate,  it  does  not  follow  that  the  trust  created  by  the 
testator  or  settlor  is  to  be  set  aside.(7)  A  strong  case 
must  be  made  out  to  induce  the  court  to  dispossess  a 
trustee  or  executor  who  is  willing  to  act.(?n)2     If  there 

(*)  Duke  of  Beaufort  v.  Ber-  (I)  Middleton  v.  Dodswell,  13 

ty,  1  P.  W.  704;  infra,  p.  20;  Yes.  268;  Smith  v.  Smith,  2  Y. 

see,  as  to  order  for  receiver  and  &  0.  361;    Whitworthv.  Whyd- 

injunction,  Brooke  v.  Cooke,  Set.  don,  2  Mac.  &  G.  52. 

on  Deer.  919.  (m)  Smith  v.  Smith,  2  Y.  & 

(k)  Dillon  v.   Lord    Mount-  C.  361;  see  Bainbndgev.  Blair, 

cashell,  4  Bro.  P.  C.  306.  4  L.  J.  Ch.  N.  S.  207. 

1  See  the  remarks  of  Baldwin,  J.,  in  Beverley  v.  Brooke,  4  Grattan, 
208  ;  also  LeddeVs  Executor  v.  Starr,  4  C.  E.  Green,  163;  Harrup 
v.   Winslet,  27  Ga.  65.") ;  and  Delaney  v.  Tipton,  3  Hapv.  11. 

2  Humes  v.  Carpenter,  1  Woods  (Cir.  Ct.  R.),  265-6;  affirmed  on 
appeal,  1  Otto,  254. 


AND   TRUSTEES.  19 

is  no  danger  to  property,  and  no  fact  is  in  evidence 
to  show  the  necessity  of  interfering  by  appointing  a 
receiver,  the  court  will  not  appoint  one.(n)1  The  court 
will  not,  at  the  instance  of  one  of  several  parties 
interested  in  an  estate,  displace  a  competent  trustee, 
or  take  the  possession  from  him,  unless  he  has  wilfully 
or  ignorantly  permitted  the  property  to  be  placed  in  a 
state  of  insecurity,  which  due  care  or  conduct  would 
have  prevented.  It  is  not  enough  that  the  estate  may 
have  depreciated  in  value,  and  that  the  incumbrances 
thereon  may  have  been  increasing,  if  the  management 
of  the  trustee  does  not  appear  to  have  been  improper.(o) 
It  is  no  sufficient  cause  for  the  appointment  of  a  re- 
ceiver that  one  of  several  trustees  has  disclaimed  ;(p) 
for  the  disclaimer  of  one  of  several  trustees  does  not  in 
law  affect  the  estate  of  the  others,  but  has  the  effect  of 
vesting  it  in  them  exclusively  ;(q)  and  the  testator  or 
creator  of  the  trust  must  be  presumed  to  know  what 
the  legal  consequences  of  the  death  or  disclaimer  of 
some  of  them  must  be.  "Where,  accordingly,  there  are 
several  trustees,  the  disclaimer  of  some  of  them  is  not 
alone  a  sufficient  ground  for  the  appointment  of  a  re- 
ceiver without  the  consent  of  those  who  remain.(r) 

(n)   Whitworth  v.  Whyddon,  434 ;   but  see  Tait  v.  Jenkins,  1 

2  Mac.  &  G.  52.  Y.  &  C.  C.  C.  492. 

(o)  Barkley  v.  Lord  Reay,  2  (q)  Small  v.  Marwood,  9  B.  & 

Ha.  308  ;   see  Smith  v.  Smith,  2  C.  300  ;  Townson  v.  Tickell,  3  B. 

Y.  &  C.  353.     Comp.  Bainbridge  &  Aid.  31. 

v.  Blair,  4  L.  J.  Ch.  N.  S.  207.  (r)  Browell  v.   Reed,   1    Ha. 

(p)  Browell  v.   Reed,  1   Ha.  434. 

1  See  SchlechVs  Appeal,  60  Penna.  St.  E.  172 ;  Burt  v.  Burt,  41 
New  York,  46. 


20  EXECUTORS 

Nor  is  it  a  sufficient  cause  for  the  appointment  of  a 
receiver  that  the  trustees  or  executors  are  poor  or  in 
mean  circumstances,^)1  or  that,  being  trustees  for  sale, 
they  have  let  the  purchaser  into  possession  before  they 
received  the  purchase-moneys,  for  the  court  will  not 
necessarily  infer  this  to  be  misconcluct.(^) 

Nor  is  it  a  sufficient  cause  for  the  appointment  of  a 
receiver  that  one  of  several  trustees  is  inactive,^)  or 
has  gone  abroad. (a:) 

Misconduct,  &c,  a  Ground  for  a  Receiver.— If  any  mis- 
conduct, waste,  or  improper  disposition  of  the  assets 
can  be  shown,(y)2  or  if  it  appear  that  the  trust  pro- 
perty has  been  improperly  managed,  or  is  in  danger  of 
being  lost,(z)  there  is  a  case  for  a  receiver.     If  it  can 

(s)  Anon.,  12  Yes.  4;  Howard  (x)  lb.,  per  Wigram,  Y.  C. 

v.  Papera,   1   Madd.   142  ;    see  (y)  Anon.,  12  Yes.  4,  per  Sir 

Hathornthwaite    v.   Russell,    2  W.  Grant ;  see  Oldfield  v.  Cob- 

Atk.  126.  belt,  4  L.  J.  Ch.  N.  S.  272. 

(£)  Browell  v.  Reed,   1   Ha.  (z)  Middleton  v.  Dodswell,  13 

434.  Yes.  266. 

(u)  Broivell   v.  Reed,  1   Ha. 
434. 

1  See  Stairley  v.  Rabe,  McMul.  Eq.  22,  for  an  exceptional  case  in 
which  a  receiver  was  appointed. 

2  AY  here  an  executor  who  has  had  the  actual  management  of  the 
estate  has  wasted  or  misappropriated  the  fund  in  his  hands,  and 
claims  that  he  can  permit  a  co-executor,  who  is  insolvent,  to  take 
funds  of  the  estate  without  being  responsible,  and  has  once  permitted 
this,  and  such  co-executor  has  appropriated  the  funds  so  taken  to  his 
own  use,  a  receiver  will  be  appointed;  Price's  Ex'r  v.  Price's  Ex'r, 
8  C.  E.  Green,  428.  See  also  State  of  Illinois  v.  Delafield,  8  Paige, 
C.  R.  527  ;  Jenkins  v.  Jenkins,  1  Paige,  0.  II.  243 ;  Janeway  v. 
Green,  16  Abb.  Pr.  R.  215  (note);  Sedgwick  v.  Place,  3  Bank. 
Reg.  35;  Calhoun  v.  King,  5  Alab.  525;  Mandel  v.  Peay,  20  Ar- 
kansas, 325  ;   Chappell  v.  Akin,  3D  Georgia,  177. 


AND   TRUSTEES.  21 

be  satisfactorily  established  that  parties  in  a  fiduciary 
position  have  been  guilty  of  a  breach  of  duty,  there  is 
a  sufficient  foundation  for  the  appointment  of  a  re- 
ceiver.^)1 

Where  a  portion  of  a  trust  fund  has  been  lost,  that 
loss  is  primd  facie  evidence  of  a  breach  of  duty  on  the 
part  of  the  trustees,  sufficient  to  authorize  the  inter- 
ference of  the  court  by  the  appointment  of  a  receiver.(6) 
So  also  it  was  held  to  be  a  good  ground  for  the  appoint- 
ment of  a  receiver  that  an  executor  or  trustee  had 
omitted  to  raise  a  certain  sum,  as  he  should  according 
to  the  will  of  his  testator  have  done,  for  the  mainte- 
nance and  education  of  infant  legatees.(c)  "To  au- 
thorize the  court,"  said  Alderson,  B.,(d)  "to  appoint  a 
receiver,  it  is  enough  to  say  that  the  executor  has  not 
done  what  he  could  to  get  in  the  personal  estate  of  the 
testator ;  that  he  has  left  a  considerable  portion  of  it 
outstanding  on  improper  securities ;  and  that  he  has 
not  raised  a  certain  sum,  as  according  to  the  testator's 
will  he  should  have  done,  in  order  that  the  parties 
might  know  what  they  had  to  look  to. "(e)     So  also  a 

{a)  Evans  v.  Coventry,  5  D.  Brooker  v.  Brooker,  3  Sm.  &  G. 

M.  &  G.   918;     see    Havers  v.  475. 

Havers,  Barn.  Ch.  23  ;  Att.-Gen.  (6)  Evans  v.  Coventry,  5  D.  M. 

v.  Bowyer,  3  Ves.  714;   Baylies  &  G.  918. 

v.  Baylies,  1  Col.  537  ;  Re  Cor-  (c)  Richards  v.  Perkins,  3  Y. 

micks,  2  Ir.  Eq.  264  ;  Brenan  v.  &  0.  307. 

Preston,  2  D.  M.  &  G.  839  ;  Bain-  (d)  lb. 

brigge  v.  Blair,  3   Beav.   421 ;  (e)  See  Hart  v.  Tulk,  6  Ha. 

Bowman  v.  Bell,  14  L.  J.  Ch.  119;  611. 
Re  Bywater,  1  Jur.  N.  S.  227  ; 

1  See  Walker  v.  Morris,  14  Georgia,  323.  That  the  trustee  mixes 
trust  funds  with  his  own,  is  not  a  sufficient  ground  for  the  appoint- 
ment of  a  receiver.     Orphan  Asylum  v.  McCartee,  Hopkins,  429. 


22  EXECUTORS 

receiver  will  be  appointed  if  it  appear  that  the  trus- 
tees have  an  undue  leaning  or  bias  towards  one  of  the 
contending  parties.(/)  So  also  where,  in  consequence 
of  disputes  among  the  trustees,  the  payment  of  rents 
has  been  permitted  to  fall  into  arrear,  on  bill  filed  by 
the  party  entitled  to  the  rents  and  profits  for  her  life, 
a  receiver  was  appointed.^)  "  A  receiver,"  said  Lord 
Langdale,(A)  "  must  be  appointed  in  order  to  secure  to 
her  the  recovery  of  the  arrears  of  rents  and  the  punc- 
tual payment  of  the  accruing  rents."1 

In  Sheppard  v.  Oxenford,{i)  where  a  man  who  had 
accepted  and  held  moneys  for  certain  parties  upon  cer- 
tain trusts,  afterwards  denied  the  legality  of  the  trust 
on  which  he  held  the  moneys,  the  court  appointed  a 
receiver. 

Bankruptcy,  &c,  of  a  Trustee,  when  a  Ground  for  a  Re- 
ceiver.—If  a  sole  executor  or  trustee  becomes  bankrupt, 
there  is  a  case  for  the  appointment  of  a  receiver.^') 
But  if  a  testator  has  selected  an  insolvent  debtor  as  his 
executor,  with  full  knowledge  of  his  insolvency,  the 
court  will  not  on  the  bare  fact  of  the  insolvency  alone 

(/)  Earl  Talbot  v.  Hope  Scott,        (j)  Steele  v.  Cobham,  L.  R.  1 

1    K.  &  J.  139;  see  Malcolm  v.  Cli.  App.   325;   see   Havers  v. 

Montgomery,  1  Hog.  93.  Havers,  Barnard,  Ch.  23;    Mid- 

(g)  Wilson  v.  Wilson,  2  Keen,  dleton  v.  Dodswell,  13  Ves.  268 

249.  Utterson  v.  Mair,  2  Yes.  Jr.  95 

(/.)  lb.  252.  Scott   v.   Becker,    4   Pri.    34G 

(*)  1  K.  &  J.  492.  Hughes  v.  Wheeler,  11  Beav.  178. 

1  A  receiver  may  be  appointed  for  the  purpose  of  collecting  a 
debt  due  to  the  trust  estate  when  the  trustee  refuses  to  institute  the 
suit.  See  remarks  of  Lord  Justice  James  in  Sharp  v.  San  Paulo 
Railway  Co.,  L.  11.  8,  Ch.  App.  009,  CIO: 


AND   TRUSTEES.  23 

interfere,  by  appointing  a  receiver.(&)  The  practice, 
however,  of  not  appointing  a  receiver  where  a  testator 
ha3  selected  as  his  executor  an  insolvent  debtor,  with 
knowledge  of  his  insolvency,  has  not  gone  so  far  as  to 
permit  a  person,  against  whom  there  is  evidence  of  in- 
solvency, to  prevail  against  creditors  claiming  to  have 
the  property  secured  for  their  benefit,  when  it  is  not 
more  than  sufficient  to  pay  them.(^)1  Nor  is  it  to  be 
inferred,  from  the  circumstances  of  the  will  having 
been  made  some  time  before  the  insolvency,  and  not 
altered  afterwards,  that  the  testator  had  a  deliberate 
intention  to  intrust  the  management  of  his  estate  to 
an  insolvent  executor.(?n)  In  Smith  v.  Smith,{n)  the 
fact  that  the  party  who  had  obtained  administration 
of  the  testator's  real  and  personal  estate  was  an  uncer- 
tificated bankrupt,  and  was  not  appointed  to  his  office 
bv  the  testator,  but  had  taken  out  administration  to 


(k)  Gladdon  v.  Stoneman,  1  (m)    Langley    v.    Haivke,    5 

Mackl.l43n.  \Langley  v.  Hawke,  Madd.  46  ;    Oldfield  v.   Cobbett, 

5  Madd.  46  ;  Stainton  v.  Carron  4  L.  J.  Ch.  N.  S.  271. 

Co.,  18  Beav.  146,  161.  (n)  2  Y.  &  C.  361. 

(I)   Oldfield  v.  Cobbett,  4  L.  J. 
Ch.  N.  S.  272. 

1  When  a  debtor  in  failing  circumstances  makes  an  assignment  for 
the  benefit  of  his  creditors  to  a  person  who  is  insolvent,  a  receiver 
will  be  appointed.  Haggerty  v.Pittman,  1  Paige,  C.  E.  298.  See 
also  Jenkins  v.  Jenkins,  1  Paige,  0.  R.  243  ;  Keyes  v.  Brush,  2 
Id.  311  ;  Ex  parte  Walker,  25  Alab.  81 ;  Dougherty  v.  McDougald, 
10  Georgia,  121.  In  this  last  case  a  receiver  was  refused,  but  subse- 
quently (in  the  same  estate),  upon  a  bill  filed  by  a  creditor  against 
the  trustee  for  the  benefit  of  creditors,  wherein  gross  mismanagement 
of,  and  imminent  danger  to,  the  property  was  shown,  a  receiver  was 
appointed.    Jones  v.  Dougherty,  10  Georgia,  274. 


24  EXECUTOKS 

the  widow  of  the  testator,  was  held  not  a  sufficient 
reason  to  induce  the  court  to  appoint  a  receiver  before 
answer,  where  several  of  the  parties  interested  declined 
to  join  in  the  application. 

Poverty,  &c.,  of  Trustee,  when  a  Ground  for  a  Receiver. 
— Although  it  is  not  a  sufficient  cause  for  the  appoint- 
ment of  a  receiver  that  an  executor  or  trustee  is  poor 
or  in  mean  circumstances,(o)  the  case  is  different  if  an 
executor  or  administrator  he  proved  to  be  of  bad  char- 
acter, drunken  habits,  and  great  poverty.(p)1  So  also 
where  the  executrix  and  guardian  of  infant  children 
married  a  man  in  necessitous  circumstances,  a  receiver 
was  appointed.(^)  So  also  a  receiver  was  appointed  in 
a  case  where  a  wife  was  an  executrix,  and  the  husband, 
besides  being  in  indifferent  circumstances,  was  out  of 
the  jurisdiction,  because,  in  a  case  where  the  husband 
is  out  of  the  jurisdiction,  there  is  no-  remedy,  if  the 
wife  waste  the  assets  ;(r)  but  if  a  woman  who  has  been 
deserted  by  her  husband  has  obtained  an  order  for  the 

(o)  Supra,  p.  20.  (q)  Dillon    v.    Lord  Mount- 

(p)  Everett  v.  Prijthergh,  12     cashell,  4  Bro.  P.  C.  30G. 

Sim.  3G8;  see  King  v.  Abbotson,         (r)   Taylor   v.    Allen,  2  Atk. 

7  L.  J.  Exch.  N.  S.  6.  213  ;  see  Pemberton  v.  McGill,  3 

W.  R.  557. 

1  Fairbaim  v.  Fisher,  4  Jones  (Eq.),  390.  But  in  Poythress  v. 
Poythress,  16  Georgia,  40G,  where  a  bill  was  filed  to  remove  a  testa- 
mentary trustee,  the  court  held  that  mere  bad  habits  and  capricious 
conduct  on  the  part  of  the  trustee  towards  the  cestui  que  trust  were 
not  sufficient  to  justify  the  appointment  of  a  receiver,  although  they 
mighl  be  grounds  ultimately  for  his  removal  from  the  trust.  See 
also  Ogden  v.  Kip,  G  Johns.  C.  I!.  160.  Great  age  is  not  a  ground 
for  removal,     llosaek  v.  lingers,  G  1'aige,  0.  11.  431. 


AND    TRUSTEES.  25 

protection  of  her  property  under  the  21st  section  of 
the  Divorce  and  Matrimonial  Causes  Act,  20  &  21  Vict. 
c.  85,  the  court  will  not  interfere.(s) 

In  a  case  where  a  married  woman,  whose  husband 
was  of  unsound  mind,  was  appointed  executrix  along 
with  another  person  as  her  co-executor,  and  it  appeared 
that  the  co-executor,  who  had  taken  out  probate,  could 
not  sell  the  estate  or  collect  the  assets,  a  receiver  was 
appointed,  (t) 

Sole  Executor  Abroad.— Although  it  is  not  a  sufficient 
ground  for  the  appointment  of  a  receiver  that  one  of 
several  trustees  may  have  gone  abroad, (u)  the  case  is 
otherwise  if  a  sole  executor  resides  abroad(v)  or  be 
abroad,  and  the  beneficiaries  under  the  will  are  unable 
to  obtain  an  account  from  the  person  left  in  control  of 
the  property  during  the  executor's  absence.(re)1 

Receiver  Appointed  on  Consent  of  Parties.— If  all  the 

cestuis  qui  trustent,  or  parties  beneficially  interested  in 
an  estate,  concur  in  the  application  for  a  receiver,  and 
the  trustee  consents,  the  court  will  make  the  orderly) 

(s)  Bathe  v.  Bank   of  Eng-  C.  C.  210;  see  Noad  v.  Back- 
land,  4  K.  &   J.  564;    see  Re  house,  2  Y.  &  C.  C.  C.  529. 
Rainsdon,  4  Drew.  447  ;    Post-  (x)  Dickins  v.  Harris,  14  L. 
gate  v.  Barnes,  9  Jur.  N.  S.  456.  T.  N.  S.  98  ;  sea  Faith  v.  Dun- 

(t)   Yetts  v.  Palmer,  9  Jur.  N.  bar,  Coop.  200. 

S.  954.  (y)  Brodie  v.  Barry,  3  Mer. 

(u)  Supra,  p.  20.  696  ;  see  Bartley  v.  Bartley,  9 

(v)    Westby  v.  Westby,  2  Coo.  Jur.  224. 

1  See  Ex  parte  Galluchat,  1  Hill,  C.  K.  150;  and  Edmonds  v. 
Crenshaw,  1  McCord,  C.  R.  252. 


26  EXECUTORS 

So  also  in  a  case  where  it  appeared  that  one  trustee 
had  disclaimed,  and  that  all  the  other  parties  desired 
it,  and  the  other  trustee  cousented,  the  court  ordered 
that  there  should  be  a  receiver.(z)  So  also  in  a  case 
where  there  were  two  executors  and  trustees,  and  one 
had  died  and  the  survivor  refused  to  act,  the  persons 
beneficially  interested  were  held  entitled  to  the  pro- 
tection of  the  court  by  the  appointment  of  a  receiver.(a) 
The  fact  that  the  trustee  who  had  died  may  have  ad- 
vanced moneys  out  of  his  own  pocket  to  an  annuitant 
under  the  will,  in  the  expectation  of  repayment  out  of 
assets,  was  not  considered  a  sufficient  ground  for  his 
representatives  to  resist  the  appointment  of  a  receiver, 
in  the  event  of  the,  assets  proving  deficient.(6) 

Other  Cases  in  which  a  Receiver  will  be  Appointed  — 
In  a  case  where  two  out  of  three  trustees  chose  to  act 
separately,  and  took  securities  in  their  own  name, 
omitting  that  of  the  dissentient  trustee,  a  cestui  que 
trust  was  held  entitled  to  a  receiver  ;(c)  and  the  court 
will  grant  a  receiver  at  the  instance  of  the  cestui  que 
trust,  where  the  single  trustee,  or  all  the  trustees,  are 
out  of  the  jurisdiction.^)  A  receiver  will  necessarily 
be  appointed  where  the  co-trustees  cannot  act  through 
disagreement  among  themselves.(e) 

(z)  Beaumont  v.  Beaumont,  [d]  Noad  v.  Bad-house,  2  Y. 
cited,  3  Mer.  GOG.  &  C.  C.  C.  529 ;  Smith  v.  Smith, 

(a)  Palmer    v.    Wright,    10     10  Ha.  App.  71. 

Beav.  237.  (e)  Bagot  v.  Bagot,  10  L.  J. 

(b)  lb.  Ch.  N.  S.  116;  Day  v.   Croft, 

(c)  Sivalc  v.  Swale,  22  Beav.  Lewin  on  Trustees,  731. 
584. 


AND   TRUSTEES.  27 

In  Tidd  v.  Lister(f)  there  had  been  four  trustees, 
one  of  whom  was  dead  and  another  was  abroad,  and 
the  third  had  scarcely  interfered  in  the  trust;  the 
business  of  the  trust  fell  almost  exclusively  on  one 
trustee,  and  upon  the  consent  of  the  acting  trustee,  Sir 
J.  Leach  considered  he  was  justified  in  appointing  a 
receiver.(^)  So  also  a  receiver  was  granted  on  the 
misconduct  of  one  trustee,  the  other  executors  consent- 
ing to  the  order.(A) 

Implied  Trusts.— In  the  case  of  misconduct  by  trustees, 
the  court  will  appoint  a  receiver,  as  well  where  the 
trust  arises  by  implication  as  where  it  is  expressed.1 
If,  for  example,  a  tenant  for  life  of  leaseholds  is  bound 
to  renew,  he  is  in  such  case  clothed  with  the  character 
of  a  trustee ;  and  if  by  his  threats  or  acts  he  manifests 
an  intention  to  suffer  the  lease  to  expire,  the  court 
will  appoint  a  receiver  in  order  to  provide  a  fund  for 
renewal.(i)  A  similar  order  for  the  appointment  of  a 
receiver  of  the  rents  and  profits  of  an  estate,  for  the 
purpose  of  accumulating  a  fund,  was  made  where  the 
tenant  for  life  had  fraudulently  obtained  a  sum  of 
stock  to  which  the  trustees  of  the  settlement  were 
entitled,  (k) 

In   a   case  where  a   testator  had   bequeathed   the 

(/)  5  Madd.  433.  (*')  See  Bennett  v.  Colley,  2  M. 

(g)  1  Ha.  434,  per  Wigram.  &  K.  233. 

(h)  Middletonv.  Dodswell,  13  (it)    Woodyatt  v.   Gresley,   8 

Ves.  268.  Sim.  180. 

1   Gunn  v.  Blair,  9  Wisconsin,  352. 


28  PENDING    LITIGATION 

residue  of  his  real  and  personal  estate  to  his  widow, 
stating  in  his  will  that  he  had  done  so  "in  perfect 
confidence  that  she  will  act  up  to  those  wishes  which 
I  have  communicated  to  her  in  the  ultimate  disposal 
of  my  property  after  my  decease,"  the  court,  being 
satisfied  on  the  evidence  that  the  bequest  had  been 
made  on  the  faith  of  a  promise  made  by  her  that  she 
would  dispose  of  her  property  in  favor  of  the  plaintiffs, 
the  natural  children  of  the  testator,  and  that  an 
implied  trust  was  accordingly  raised  in  their  favor, 
granted  a  receiver  of  the  real  and  personal  estates,  on 
the  death  of  the  widow,  against  the  heir  at  law  of  the 
real  estates  and  the  second  husband  of  the  widow.(7) 

Receiver  Pending  Proceedings  Abroad.— If  one  of  the 
next  of  kin  of  a  foreigner  were  to  obtain  administra- 
tion here,  pending  proceedings  abroad  to  ascertain  who 
the  next  of  kin  are,  a  bill  for  a  receiver  will  lie  at  the 
suit -of  a  party  claiming  as  next  of  km.(wi) 


SECTION  III. — PENDING  LITIGATION  AS  TO  PROBATE. 

During  a  litigation  in  the  Ecclesiastical  Court  for 
probate  or  administration,  the  Court  of  Chancery 
would  entertain  a  bill  for  the  mere  preservation  of  the 
property  of  the  deceased  till  the  litigation  was  deter- 
mined, and  appoint  a  receiver,  although  the  Ecclesi- 
astical  Court,  by  granting   an   administrator,  might 


(Z)  Podmore  v.   Gunning,  7         (m)  Transatlantic  Co.  y.  Pie- 
Sim.  644.  troni,  John.  604. 


AS  TO  PROBATE.  29 

have  provided  for  the  collection  of  the  effects  pendente 
lite.(ny  It  was,  indeed,  a  matter  of  course,  where  no 


(n)  King  v.  King,  6  Ves.  172  ;  pending  a  contest  in  that  court. 

Atkinson  v.  Henshaw,  2  Y.  &B.  "When,  however,  it  was  decided 

85  ;  Ball  v.  Oliver,  lb.  96  ;  Wat-  in  Walker  v.  TToZ/asifoM,  2  P.  W. 

jfciws  v.  Brent,  1  M.  &  C.  102  576,  that  the  Ecclesiastical  Court 

(overruling'  the  distinction  taken  had   that   power,   the    Court    of 

by   Lord   Erskine  in   Richards  Chancery    followed    the    course 

v.  Chave,  12  Yes.  465) ;  Wood  v.  usually  adopted  by  it,  and  did 

Hitchings,  2  Beav.  289,  on  ap-  not  on  that  account  abandon  its 

peal  4  Jur.  858.      The  jurisdic-  jurisdiction,  but  continued  to  ap- 

tion  was  originally  assumed  by  point  a  receiver   in  aid  of  the 

the   Court   of    Chancery,    under  Ecclesiastical  Court  for  the  pro- 

the   impression   that    the    Eccle-  tection  of  the  personal  property  of 

siastical  Court  had  no  power  to  the  deceased.  Jonesv.  Goodrich, 

name  an  administrator  to  collect  4  Jur.  98,  per  Lord  Cottenham. 
the  property  of  a  deceased  person 

1  In  Rachel  Colvin's  Case,  3  Maryl.  Chan.  Dec.  279,  a  lunatic 
died,  leaving  a  will  which  she  had  made  when  compos  mentis.  The 
duties  of  her  committee  terminated  on  her  death.  An  administration 
pendente  lite  was  granted  by  the  Orphans'  Court,  the  probate  of  the 
will  having  been  disputed.  Previous  to  the  grant  of  letterspe><</'  nte 
lite  a  receiver  had  been  appointed  by  the  Court  of  Chancery.  The 
appointment  was  held  to  be  proper,  but  the  duties  of  the  receiver 
were  said  to  terminate  with  the  appointment  of  the  administrator 
pendente  lite. 

The  chancellor  said  :  "  There  can,  I  presume,  be  no  doubt  of  the 
authority  of  this  court  to  protect  the  property  of  an  intestate  or 
testator,  by  appointing  a  receiver  pending  a  litigation  in  the  Eccle- 
siastical Court  for  probate  or  administration.  It  was  assumed  by 
Lord  Eldon  as  free  from  doubt  in  the  case  of  King  v.  King,  6  Yesey, 
172,  and  although  apparently  to  some  extent  shaken  by  Lord 
Erskine,  in  Richards  v.  Chave,  12  Yesey,  462,  it  has  been  fully  and 
firmly  established  in  subsecjuent  cases.  See  Edmonds  v.  Bird,  1  Y. 
&  B.  542 ;  Atkinson  v.  Henshaiv,  2  Y.  &  B.  85  ;  Ball  v.  Oliver,  lb. 
96."  See  also  1  Williams  on  Executors,  436, 437  (5th  Am.  ed.).  The 
chancellor  then  went  on  to  speak  of  Lord  Eldon's  doubt,  as  expressed 
in  Atkinson  v.  Henshaw,  when  commenting  on  Walker  v.  Woollas- 
ton,  2  Peere  Wins.  576,  viz.,  whether  the  acual  appointmeut  of  the 


30  PENDING   LITIGATION 

probate  or  administration  had  been  granted,  for  the 
Court  of  Chancery  to  appoint  a  receiver,  pending  a 
bond  fide  litigation  in  the  Ecclesiastical  Court  to  deter- 
mine the  right  to  probate  or  administration,  unless  a 
special  case  were  made  out  for  not  doing  so.(o)  In 
cases  where  the  representation  was  in  contest,  and  no 
person  had  been  appointed  executor  or  administrator, 
the  court  would  interfere,  not  because  of  the  contest, 
but  because  there  was  no  proper  person  to  receive  the 
assets.(p)  In  Whitworth  v.  Whyddon,  (q)  where  the  per- 
son named  as  executor  in  the  will  was  in  possession 
of  the  property  of  his  testator,  the  court  would  not 
take  the  property  from  him  and  burden  the  estate 
with  the  expenses  of  a  receiver,  inasmuch  as  the  pro- 
perty was  of  trifling  value,  and  no  sufficient  ground 
had  been  shown  to  warrant  the  interference  of  the 
court. 

In  a  case  where  two  suits  had  been  instituted  for 
the  protection  of  the  estate  of  a  deceased  person  pen- 
dente lite  in  the  Ecclesiastical  Court  (one  in  the  Rolls 
and  another  in  a  Vice-Chancellor's  Court),  it  was  held 
that  the  fact  that  the  plaintiff  in  the  first  suit  had 

(o)  Rendall  v.  Rendall,  1  Ha.  C.  102  ;  see  Rendall  v.  Rendall, 
154,  per  Wigram,  V.  C.  1  Ha.  154. 

(p)  Watkins  v.  Brent,  1  M.  &        (q)  2  Mac.  &  G.  55. 

administrator  pendente  lite  would  obviate  the  necessity  for  a  re- 
ceiver, and  finally  arrived  at  the  conclusion  that  as  soon  as  the 
administrator  pendente  lite  was  appointed,  the  functions  of  the  re- 
ceiver ought  to  cease.  He  also  decided  that  an  appeal  by  the  re- 
ceiver, from  the  order  discharging  him,  was  not  a  supersedeas.  See 
also  Rice  v.  Tonnele,  4  Sandf.  C.  R.  568.     Stated  supra,  p.  16. 


AS   TO    PROBATE.  31 

failed  to  establish  the  will  in  the  Ecclesiastical  Court 
formed  no  valid  reason  why  a  receiver  should  not  be 
appointed  in  that  suit,  or  confer  any  equity  to  the 
appointment  of  a  receiver  in  the  second  suit  instead, 
the  receiver  being  merely  for  the  security  of  the 
estate.(r) 

Receiver  Pending  Suit  to  Recall  Probate.— If  probate 
or  administration  had  been  granted,  the  circumstance 
that  a  suit  was  pending  in  the  Ecclesiastical  Court  to 
recall  or  revoke  probate  or  administration,  was  not 
of  itself  a  sufficient  ground  for  the  Court  of  Chancery, 
as  of  course,  to  interfere  to  prevent  the  parties  to 
whom  probate  or  administration  had  been  granted, 
from  using  those  powers  which  it  conferred  upon 
them.  If  probate  or  administration  had  been  properly 
granted,  the  Court  of  Chancery  would  not  appoint  a 
receiver,  pending  litigation  in  the  Ecclesiastical  Courts 
to  recall  or  revoke  probate  or  administration,  unless  a 
special  case  were  made  out  for  doing  so.(s)  The  general 
principle  was  stated  by  Turner,  L.  J.,  in  Devei/  v. 
Thornton,{t)  to  be  that  where  there  is  a  legal  title  to 
receive,  the  court  ought  not  to  interfere,  unless  where 
the  legal   title   is  abused,  or  there  is  proof  that  it 


(r)  Wood  v.  Hitclvings,  4  Jur.  1   Ha.  154  ;   see    Wlutworth  v. 

858.  Whyddon,  2  Mac.  &  G.  52. 

(s)  Watkins  v.  Brent,  1  M.  &  {t)  9  Ha.  229.     [Followed  in 

C.  102  ;  Connor  v.  Connor,  16  L.  Hitchen  v.  Berks,  L.  R.  10  Eq. 

J.  Ch.  371 ;  Newton  v.  Ricketts,  471.] 
11  Jur.  662 ;  Kendall  v.  Rendcdl. 


32  PENDING   LITIGATION 

is  in  danger  of  being  so.1  But  if  a  fair  prima  facie 
case  of  fraud  were  made  out,(w)  or  if  it  were  made  to 
appear  that  the  legal  right  to  receive  the  assets  was 
being  abused,  or  was  in  danger  of  being  abused, 
whether  from  insolvency  or  otherwise,^;)  the  court 
would  appoint  a  receiver.  So  also  would  it  appoint  a 
receiver,  if  it  appeared  from  all  the  circumstances  of 
the  case  that  there  was  no  executor  or  administrator 
in  existence  with  the  right  and  power  to  act  as  such, 
notwithstanding  there  was  no  ground  laid  for  inter- 
ference in  respect  of  any  improper  conduct  of  the  par- 
ties.^) Where,  accordingly,  the  executor,  by  agreeing 
with  his  opponents  that  the  question  as  to  the  validity 
of  the  supposed  testamentary  paper  should  be  tried 

[u)  Rutherford  v.  Douglas,  1  will.     Dew  v.   Clarke,  1  Sim.  & 

Sim.  &  St.  Ill  n. ;    Watkins  v.  St.  114,  per  Sir  J.  Leach. 

Brent,  1  M.  &  C.  102  ;  Dimes  v.  (x-)  Ball  v.  Oliver,  2  V.  &  B. 

Steinberg,  2  Sm.  &  G.  75.     In  9G ;   Connor  v.  Connor,  1C  L.  J. 

order   to   interfere    against    the  Ch.  371 ;  Newton  v.  Richetts,  11 

legal  title  of  the  executor,  it  is  Jur.  662  ;  Devey  v.  Thornton,  9 

necessary  to  establish  by  evidence  Ha.  229. 

strong  presumption  against  the  (//)  Watkins  v.  Brent,  1  M.  & 

C.  97. 

1  See  Schlecht's  Appeal,  60  Penna.  St.  R.  172.  The  fads  in  this 
case  were,  that  a  will,  appointing  the  defendants  executors,  and 
specifically  devising  to  them  certain  real  estate,  had  been  admitted 
to  probate  by  the  register,  and  that  an  appeal  was  pending  in  the 
Court,  and  that  in  the  mean  while  the  rents  were  being 
collected  by  the  executors.  The  answer  admitted  the  collection  of 
tin'  rents,  but  alleged  thai  the  defendants  collected  them  in  their 
capacity  as  devisees,  and  not  as  executors.  It  was  held  by  the 
Supreme  Court,  reversing  the  decree  of  the  court  below,  thai  il  was 
not  a  case  for  a  receiver.  There  was  no  averment  that  the  defend- 
ants were  insolvenl  or  that  waste  was  threatened.    See  cases  cited 

in  note  .'',  and   infra,  ('hap.   II.  Sect.   1  I. 


AS    TO    PROBATE.  33 

in  the  suit  to  recall  probate,  had  treated  himself  as  not 
being  complete  executor,  a  receiver  was  appointed.(z) 
"If,"  said  Wigram,  V.  C,  in  Rendall  v.  Hendall,(a)  "  the 
question  whether  the  party  claiming  to  be  executor  is 
so  de  jure  or  not,  a  receiver  will  be  appointed."  So 
also,  in  Marr  v.  Littlewood,{b)  Lord  Cottenham  ap- 
pointed a  receiver,  upon  the  application  of  the  actual 
executor,  pending  a  suit  to  annul  probate,  upon  the 
ground  that  the  opposing  party,  by  having  given  notice 
to  the  debtors  to  the  estate  not  to  pay  to  the  plaintiff, 
the  actual  executor,  had  destroyed  the  effect  of  the 
probate,  and  produced  by  his  own  act  an  incapacity  on 
the  part  of  the  executor  to  proceed  under  the  probate 
in  collecting  and  preserving  the  assets.(c) 

Probate  Act.— In  the  Probate  Act,  20  &  21  Vict.,  c. 
77,  which  abolishes  the  testamentary  jurisdiction  of 
the  Ecclesiastical  Courts,  and  establishes  a  Court  of 
Probate,  it  is  enacted,  by  clause  70,  that  pending  any 
suit  touching  the  validity  of  a  will,  or  for  obtaining, 
recalling,  or  revoking  any  probate  or  grant  of  admin- 
istration, the  Court  of  Probate  may  appoint  an  admin- 
istrator of  the  personal  estate  of  the  party  deceased ; 
and  that  the  administrator  so  appointed  shall  have  all 
the  rights  and  powers  of  a  general  administrator  other 
than  the  right  of  distributing  the  residue  of  such 
personal    estate.(Y/)     The    71st   clause   empowers   the 

(z)  lb. ;  see  Newton  v.  Ricketts,  (c)    1  Ha.  156,  per  Wigram, 

11  Jur.  622.  Y.  C. 

(«)  1  Ha.  155.  [d)  See  also  21  &  22  Vict,  c. 

(b)  2  M.  &  C.  454.  95,  s.  21. 
3 


34  PENDING   LITIGATION 

Court  of  Probate  to  appoint  a  receiver  of  the  real 
estate  of  any  deceased  person  pending  a  suit  touching 
the  validity  of  his  will  by  which  his  real  estate  may 
be  affected;  and  it  (is  declared  that  the  receiver  so 
appointed  shall  have  power  to  receive  the  rents  and 
profits  of  the  real  estate,  and  to  let  and  manage  the 
Bame.(e)  There  is  nothing  in  the  Probate  Act  which 
ousts  the  original  jurisdiction  of  the  Court  of  Chan- 
cery. If  an  administrator,  ad  litem,  has  not  been 
appointed  by  the  Probate  Court,  the  Court  of  Chan- 
cery will,  as  a  matter  of  course,  appoint  a  receiver  ; 
but  if  an  administrator,  ad  litem,  has  been  appointed 
by  the  Court  of  Probate,  the  Court  of  Chancery  will 
not  appoint  a  receiver,  for  the  administrator  can  do 
everything  that  is  necessary  for  the  protection  of  the 
property.(Z)1 

Pleading, &c—  To  warrant  the  application  for  a  re- 
ceiver, it  must  clearly  appear  that  there  is  a  bond  Jide 
litigation  pending  in  the  proper  court,  respecting  pro- 
bate or  administration.  The  Court  of  Chancery  will 
not  interfere,  unless  the  pendency  of  such  a  suit  be 
distinctly  alleged.(^)     The  mere  loose  allegation  that 

(e)   See  also  21  k  22  Vict.,  c.  {g)  Jones  v.  Jones,  3  Mer.  174 ; 

95,  ss.  21,  22.  Jones  v.    Frost,  3  Madd.  1  Jac. 

(/ )   Veret  v.  Duprez,  L.  R.  6  466  ;  Marr  v.  Littleivood,  2M.& 

Eq.  330.  0.458. 

1  Veret  v.  Duprez,  and  Ifitchen  v.  Birks  [ante,  p.  31,  note  t), 
were  followed  by  Vice  Chancellor  Malins,  in  Parkin  v.  Seddons,  L. 
R.  16  Eq.  34. 


AS    TO    PROBATE.  35 

the  plaintiff  is  proceeding  to  obtain  letters  of  adminis- 
tration is  not  enough. (A)  The  court  will  not  interfere 
on  the  ground  that  there  is  a  question  depending  on 
the  result  of  which  it  might  appear  that  the  plaintiff 
was  interested. (i) 

A  bill  for  a  receiver  pending  a  litigation  as  to  pro- 
bate, ought  not  to  seek  discovery  in  reference  to  the 
merits  of  the  litigation ;  for  a  plaintiff  cannot  by  one 
bill  obtain  specific  relief,  and  also  discovery  on  a  mat- 
ter distinct  from  that  specific  relief. (£)  But  the  mere 
fact  of  discovery  being  sought  by  the  bill  will  not 
prevent  the  appointment  of  a  receiver,  where  there  is 
a  clear  title  to  relief.  (£)  In  a  case  where  a  bill  for  a 
receiver  went  on  to  pray  that,  upon  the  administra- 
tor being  appointed  and  brought  before  the  court,  the 
rights  of  the  parties  might  be  declared,  and  the  estate 
administered,  a  demurrer  to  the  latter  part  of  the 
relief  was  allowed. (m) 

The  Court  of  Chancery,  though  it  will  appoint  a 
receiver  to  get  in  a  testator's  estate  in  aid  of  an  ad- 
ministrator, pendente  lite,  will  not  do  so  over  property 
of  a  testator  claimed  by  a  party  independently  of  the 
will,  though  his  title  may  be  charged  with  fraud. 
Where,  pending  a  contest  in  the  Ecclesiastical  Court 
between  the  plaintiff  and  the  defendant,  as  to  the 
validity  of  two  wills,  the  plaintiff  filed  a  bill  for  a 
receiver  of  the  testatrix's  estate,  and  to  set  aside  an 


(7i)  Jones  v.  Frost,  Jac.  467.  (I)  lb. 

(i)  Jones  v.  Jones.  3  ]\Ier.  174.  (m)  Be  Feuchers  Y.Dawes,  5 

(k)  Woodv.  Hitchings,  3  Beav.  Beav.  110  ;  see  Major  v.  Major, 

504.  8  Jur.  799. 


36  PENDING    LITIGATION 

assignment  made  by  her  to  the  defendant,  the  court 
refused  to  appoint  a  receiver  of  the  property  com- 
prised in  the  assignment,  that  being  claimed  by  the 
defendant  independently  of  either  will.(n) 

A  bill  praying  for  a  receiver  on  account  of  a  litiga- 
tion pending  in  the  Court  of  Probate  is  not  demurra- 
ble, notwithstanding  the  receiver  was  asked  generally, 
and  not  pending  the  litigation  respecting  probate.(o) 

The  court  will  also  appoint  a  proper  person  to  pro- 
tect a  testator's  estate,  where  the  circumstances  require 
it,  until  a  legal  personal  representative  is  appointed ; 
but  a  bill  to  protect  and  also  to  administer  the  estate 
is  irregular.(  ji) 

Though  a  receiver  has  been  appointed  during  a  liti- 
gation in  the  proper  court  respecting  the  validity  of  a 
will,  the  Court  of  Chancery  will  not,  on  that  account 
alone,  order  the  person  named  as  executor  to  pay  into 
court  mone}7  in  hand,  belonging  to  the  testator's 
estate,  received  previously  to  the  appointment  of  the 
receiver.^) 

A  suit  to  appoint  a  receiver  pending  litigation  as 
to  probate  or  administration  should  not  be  brought 
to  a  hearing.(r)  A  motion,  therefore,  to  dismiss  such 
a  suit  for  want  of  prosecution  will  be  refused  with 
costs. (s)     But  the  court  will  make  a  decree  by  consent 


(n)  Jones,  v.  Goodrich,  10  Sim.  639;  Edwards  v.  Edwards,  10 

327  ;  on  appeal,  4  Jur.  98.  Ha.  App.  63. 

(o)    Major  v.   Major,  8  Jur.  (r)  Anderson  v.  Guichard,  9 

799.  Ha.  275. 

(p)   Overington  v.    Ward,  34  (s)   Edwards  v.  Edwards,  17 

Bear.  175.  Jur.  826. 

(q)  Reed   v.   Harris,    7    .Sim. 


AS    TO    PROBATE.  37 

for  the  continuance  of  the  receiver,  and  for  payment 
of  costs,  and  the  investment  of  the  fund  in  court.(7) 
After  the  litigation  is  over  in  the  Probate  Court,  the 
practice  is  to  discharge  the  receiver  and  dispose  of  the 
costs  ;  and  if  it  appear  that  there  was  no  reasonable 
ground  for  instituting  the  suit  at  all,  the  court  will 
order  the  plaintiff  to  pay  all  the  costs,  though  a  re- 
ceiver has  been  appointed. (u) 

Receiver  pending  Dispute  as  to  the  Administration  of 
the  Estate  of  a  British  subject  dying  Abroad.— In  Hervey 
v.  Fitzpatrick,{x)  the  chief  judge  of  the  Gold  Coast,  a& 
judicial  assessor,  claimed  to  be  official  administrator 
of  a  British  subject  who  had  died  intestate,  and  domi- 
ciled there,  and  to  be  entitled  to  a  commission  for 
administering  his  estate.  He  transmitted  part  of  the 
assets  to  this  country,  and  came  himself  on  leave  of 
absence  for  a  short  time.  The  father  of  the  intestate 
obtained  letters  of  administration,  and  filed  a  bill 
against  him  praying  a  receiver.  There  was  no  evi- 
dence to  show  any  impropriety  of  conduct  on  the 
part  of  the  judicial  assessor  ;  but  the  court  held  that 
it  had  jurisdiction,  as  the  assets  and  the  assessor  were 
both  in  this  country,  and,  there  being  danger  of  his 
taking  the  assets  again  out  of  the  jurisdiction,  ap- 
pointed a  receiver  until  the  matter  could  be  adjudi- 
cated on  at  the  hearing. 


(t)  Anderson  v.  Gutchard,  9        (it)  Barton  v.  Rock,  22  Beav. 
Ha.  275.  81,  376. 

(x)  Kay,  421. 


38  BETWEEN  MORTGAGOR 

SECTION  IV. — IN  CASES  BETWEEN  MORTGAGOR  AND 
MORTGAGEE. 

Mortgagee  having  the  Legal  Estate  cannot  have  a  Re- 
ceiver.—A  mortgagee  who  lias  the  legal  estate  cannot 
come  to  the  court  for  the  appointment  of  a  receiver, 
for  he  may  by  ejectment  recover  possession  of  the 
estate  without  the  help  of  the  court.(?/)  If  he  has 
such  a  right,  and  can  proceed  at  law  to  recover  the 
estate  by  ejectment,  he  is  not  entitled  to  have  a  re- 
ceiver in  equity.^)1     It  is  not  a  sufficient  reason  for 

(y)  Berney  v.  Sewell,  1  J.  &  &  24  Vict.,  c.  145,  ss.  11,  17,  32, 
W.  648  ;  Sturch  v.  Young,  5  a  mortgagee  has  a  power  to  ap- 
Beav.  557  ;  Ackland  v.  Graver-  point  or  to  obtain  the  appoint- 
or, 31  Beav.  484.  ment  of  a  receiver  of  the  mort- 

(z)  Silver  v.  Bishop  of  Nor-  gaged  property,  unless  the  power 

wich,  3  Sw.    115    n.,  per    Lord  be  negatived  by  express  declara- 

Eldon.     The  security  sometimes  tion  in  the  security.     A  receiver, 

contains  a  power  for  the  mortga-  it    may    be    observed,    who   has 

gee  to  appoint  a  person  to  be  re-  been  appointed  under  the  ordi- 

ceiver  of  the  mortgaged  property  nary  power  for  that  purpose  in 

in  order  to  secure  to  the  mortga-  a  deed  of  mortgage  (Jefferys  v. 

gee  the  regular  payment  of  his  Dickson,  L.  R.  1  Ch.  App.  190, 

interest  out  of  the  rents  and  pro-  see  Bord  v.  Tollemache,  1  N.  R. 

fits  of  the  estate;   see  Jolly  v.  177),  or  under  the  provision   of 

Arbuthnot,  4  D.  &  J.  224  ;  Bord  23  &  24  Vict.,  c.  145,  is  in  posses- 

v.  Tollemache,  1  N.  R.  177  ;  Jef-  sion  as  the  agent  of  the  mortga- 

ferys  v.  Dickson,  L.  R:  1  Ch.  gor;  ib.  s.  18. 
App.  190;  and  now  by  stat.  23 

1  A  mortgage  in  most  of  the  United  States  is  regarded  merely  as 
a  security  for  the  debt,  and  in  many  States  it  does  not  even  pass 
the  legal  title  to  the  mortgaged  property,  and  does  not  give  the 
mortgagee  the  right  to  recover  possession  by  ejectment.  Washburn 
on  Real  Prop.,  vol.  i.  p.  516  ;  Kent's  Coin.,  vol.  iv.  p.  155  ;  Adams' 
Equity,  110;  Syracuse  Bankv.Tallman,?>\  Barbour,  207  ;  McMil- 
lan v.  Richards,  9  Cal.  365  ;  Mack  v.  Wetzlar,  39  Id.  254.    It  has 


AND   MORTGAGEE.  39 

the  court  to  depart  from  the  general  rule  that  the 
tenants  may  be  numerous,  and  that  there  may  be  dif- 

consequently  been  held  in  some  cases  that  the  complainant  in  a 
foreclosure  suit,  or  in  analogous  statutory  proceedings,  although  a 
first  mortgagee,  will,  under  certain  circumstances,  be  entitled  to  a 
receiver.  See  Hyman  v.  Kelly,  1  Nevada,  183,  where  the  doctrine 
upon  this  subject  is  well  considered.  In  New  York  it  is  said  that 
"  the  rule  in  these  cases,  when  the  mortgagee  has  not  taken  care  to 
keep  down  the  accruing  interest  by  securing  a  lieu  on  the  rents  and 
profits,  is  to  interfere  with  the  mortgagor's  possession  prior  to  a 
decree  of  foreclosure,  and  appoint  a  receiver  of  the  rents  and  profits, 
when  the  premises  are  an  inadequate  security  for  the  debt  secured 
by  the  mortgage,  and  the  mortgagor  or  other  person  in  possession 
who  is  personally  liable  for  the  debt  is  not  of  sufficient  ability  to  an- 
swer for  the  deficiency."  Warner  v.  Gouverneur's  Ex'rs,  1  Bar- 
bour, 36.  See  also  Bank  of  Ogdensburgh  v.  Arnold,  5  Paige,  C.  R. 
38-42  ;  Shotwell  v.  Smith,  3  Edw.  C.  R.  588  ;  Sea  Insurance  Com- 
pany v.  Stehhins,  8  Paige,  0.  R.  565  ;  Astor  v.  Turner,  11  Id.  436  ; 
Frelingliuysen  v.  Colden,  4  Id.  204;  Syracuse  Bank  v.  Tollman,  31 
Barb.  201.  But  such  au  appointment  is  made  with  caution,  and 
only  when  it  appears  that  there  is  a  clear  inadequacy  of  security. 
Shohvell  v.  Smith,  3  Edw.  C.  R.  588 ;  Pullan  v.  Cincinnati  and 
Chicago  R.  R.,  4  Biss.  35,  49,  50.  And  when  the  mortgaged  pro- 
perty can  be  sold  in  parcels,  and  oue  parcel  is  sufficient  to  satisfy 
the  mortgage  debt,  a  receiver  will  not  be  appointed  over  the  whole. 
Quincy  v.  Cheeseman,  4  Sand.  C.  R.  405.  In  Iowa  the  appointment 
of  a  receiver  at  the  instance  of  a  mortgagee  as  against  a  mortgagor 
in  possession  is  looked  upon  as  an  appointment  against  the  legal 
title,  and  is  therefore  to  be  governed  by  the  same  rules  as  are  estab- 
lished in  England  in  regard  to  the  appointment  of  a  receiver  upon 
the  application  of  a  second  mortgagee  when  a  prior  mortgagee  is  in 
possession.  Callanan  v.  Shaiv,  19  Iowa,  183.  Infra,  p.  44  See 
also  Henshaw  v.  Wells,  9  Humph.  567. 

In  Mississippi  the  question  was  elaborately  argued  and  carefully 
considered  in  the  recent  case  of  Myers  v.  Estell,  48  Miss.  372.  The 
court  said  :  "  Upon  what  principle  may  a  receiver  be  appointed  in  a 
foreclosure  suit  ?  Unless  there  be  a  stipulation  in  the  contract 
that  the  mortgagee  shall  have  the  rents,  he  has  no  claim  merely  on 
the  ground  that  the  debt  is  due  and  the  title  has  become  absolute. 
He  may  enter  after  default  made,  or  he  may  recover  possession  at 
law,  and  out  of  the  rents  and  profits  satisfy  the  debt ;  that  is  one  of 


40  BETWEEN    MORTGAGOR 

Acuity  in  collecting  the  rents  ;(a)  or  that  the  exercise 
of  the  legal  right  may  be  obstructed  by  difficulties.^) 

(a)  Sturch  v.  Young,  5  Beav.     L.  680;  see  Brady  v.  Fitzgerald, 
557.  12  Ir.  Eq.  278. 

(b)  Crenien  v.  Hughes,  2  J.  & 

his  remedies,  more  commonly  employed  in  Great  Britain  than  in  this 
country.    But  if  he  proceeds  to  foreclose  he  elects  to  raise  the  money 

by  a  sale  of  the  property The  mortgagee  or  trust 

creditor,  if  he  has  no  lien  upon  the  rents,  must  rest  his  claim  to  them 
on  the  ground  that  the  property  is  insufficient  to  pay  the  debt,  and 
that  without  the  redress  he  will  lose  the  residue  of  it ;  or  he  must 
go  upon  the  predicate  that  it  is  necessary  to  interfere  with  the  mort- 
gagor's possession  in  order  to  prevent  the  removal  of  the  property 
beyond  the  reach  of  the  court,  or  to  save  it  from  wasture  and  dete- 
rioration. In  these  latter  circumstances,  the  debtor  perpetrates  a 
positive  wrong,  which  either  endangers  altogether  a  realization  of  the 
fruits  of  the  suit,  or  diminishes  the  value  of  the  security.  The  elec- 
tion of  the  chancery  forum  is  to  prefer  to  convert  the  property  into 
money  and  pay  the  debt,  rather  than  the  legal  remedy  to  get  pay- 
ment out  of  the  rents  and  profits.  In  this  case  the  application  is  to 
be  maintained,  if  at  all,  upon  the  allegation  of  the  insufficiency  of 
the  property  to  pay  the  debt.  If  the  only  means  or  source  of  pay- 
ment was  out  of  the  property,  the  creditor  could  present  a  very 
urgent  reason  why  the  property  should  be  made  to  produce  the 
utmost  farthing  pending  the  litigation.  But  suppose  the  debtor  is 
abundantly  able  to  pay  the  deficit,  upon  sale  of  the  mortgaged  pre- 
mises, and  there  is,  therefore,  no  apparent  danger  that  the  creditor 
will  lose  any  part  of  his  debt,  must  a  receiver  be  appointed  ?  The 
bill  does  not  in  terms  allege  that  Myers  is  personally  insolvent,  or 
that  he  is  unable  to  pay  an  expected  deficiency  on  foreclosure  sale." 
The  court  then  reviewed  some  of  the  English  and  American 
authorities  and  went  on  to  say  :  "  Regarding  the  mortgage  as  more 
especially  a  security  for  the  debt,  we  think  the  better  rule  to  be 
that  which  will  grant  the  receiver  or  not  as  it  may  or  may  not  be  an 
essential  means  to  pay  the  debt.  There  can  be  no  necessity  for  this 
auxiliary  remedy  if  the  mortgagee  is  solvent  and  able  to  pay  any 
deficiency.  In  such  cases  the  creditor  ought  to  be  left  to  his  legal 
remedy  to  get  at  the  rents."  The  court  then  proceeded  to  discuss 
the  difference  between   an  ordinary  mortgage  and    the  case  of  a 


AND    MORTGAGEE.  41 

Upon  the  same  principle  the  court  would  not  grant  a 
receiver  to  an  equitable  incumbrancer,  whose  security 

security  in  the  form  of  a  deed  of  trust,  and  called  attention  to  the  fact 
that  in  the  case  under  consideration  the  trustee  had  simply  the  power 
to  sell  and  no  power  to  enter  and  take  the  rents  as  could  be  done  by 
a  first  mortgagee;  and,  reaching  the  conclusion  that  in  the  case  of  a 
trust  deed  the  appointment  of  a  receiver  must  depend  very  much 
upon  the  circumstances  of  the  case,  said  :  "  In  view  of  the  fact  that 
the  property  is  a  precarious  security  for  the  debt,  and  the  further 
fact  that  the  obligations  of  tenants  for  rent  amounting  to  several 
thousand  dollars,  have  been  assigned  to  a  non-resident,  in  part  to 
create  a  fund  subject  to  Myers'  control  out  of  the  State  ;  of  the  fact 
that  he  has  conveyed  one-third  of  the  plantation  in  trust  for  his 
children  ;  that  he  has  combined  with  the  trustee  and  deprived  the 
complainant  of  the  enforcement  of  the  trust  security  according  to 
its  tenor  and,  notwithstanding  the  forbearance  of  the  creditor  for 
four  years,  has  made  no  payment  on  the  debt,  ought  he  to  be  suffered 
to  reap  the  advantages  which  he  has  thus  obtained  ?  We  think  not. 
In  no  other  mode  productive  of  such  little  injury  to  either  party, 
can  this  be  done,  as  entrusting  the  property  to  a  receiver,  whose 
control  over  it  will  not  be  adverse  or  hostile  to  either,  but  who  will 
hold  it  and  its  income  so  as  to  answer  the  ends  of  justice  when  the 
final  decree  shall  be  rendered.  If,  as  stated  in  the  answer,  the  sale 
was  advertised  to  have  been  made  in  Washington  County  instead  of 
Bolivar,  or  if  the  suit  had  been  brought  prematurely,  it  would  have 
been  the  duty  of  the  trustee  to  have  called  in  the  advertisement 
and  to  have  dismissed  the  suit,  so  that  there  might  have  been  a  recti- 
fication of  the  mistakes  and  errors.  But  he  abandoned  the  trust 
altogether.  The  non-payment  of  taxes  or  suffering  the  title  to  be 
embarrassed  by  a  tax  sale  (  Wall  Street  Ins.  Co.  v.  Loud,  20  How. 
Pr.  96)  or  the  unfairness  of  the  covenant  of  the  mortgagor,  will 
justify  the  appointment  of  a  receiver.  Finch's  Adm'r  v.  Houghton, 
19  Wis.  158 ;  Callanan  v.  Shaiv,  19  Iowa,  183.  We  think  that 
the  combined  influence  of  the  circumstances  in  this  case  authorized 
the  chancellor  to  appoint  a  receiver."  See,  also,  Whitehead  v. 
Wrothen,  43  Miss.  523.  The  rule,  therefore,  in  Mississippi  seems 
to  be  that  while  in  the  case  of  an  ordinary  mortgage  a  receiver  will 
not  be  appointed  unless  the  mortgaged  premises  are  inadequate  to 
secure  the  debt  and  the  mortgagor  is  insolvent,  yet  that  such  an 
appointment  will  be  made  where  the  security  has  assumed  the  shape 
of  a  deed  of  trust  which  does  not  give  the  trustee  the  power  of  enter- 


42  BETWEEN    MORTGAGOR 

was  vested  in   a  trustee  with  powers  of  distress  and 
entry.(c) 

(c)     Buxton    v.    Monkhouse,     Sollory  v.  Leaver,  L.  R.  9  Eq. 
Coop.  41 ;  comp.  White  v.  Smale,     22.] 
22  Beav.  73  ;  infra,  p.  44.    [See 

ing  and  taking  the  rents,  and  where  the  special  circumstances  of  the 
case  are  such  as  to  call  for  the  interposition  of  the  court. 

In  New  Jersey,  however,  an  opposite  doctrine  is  held.  The  courts 
do  not  follow  the  New  York  rule,  that  the  insolvency  of  the  mort- 
gagor and  the  inadequacy  of  the  security  will  justify  the  appoint- 
ment of  a  receiver.  Gortleyeu  v.  Hathaway,  3  Stockton,  39.  "  The 
rule  so  broadly  laid  down,"  says  the  chancellor,  "  is  not  sustained  by 
precedents,  and  is  not  free  from  objections.  No  distinction  is  drawn 
between  a  first  and  subsequent  mortgagee.  Their  rights  are  entirely 
different.  The  first  mortgagee  has  a  legal  right  to  the  rents  and 
profits,  but  a  court  of  equity  has  been  reluctant  to  appoint  a  receiver 
upon  his  application,  for  the  reason  that  he  has  a  remedy  at  law  by 
ejectment,  by  which  he  may  get  into  the  receipt  of  the  rents  and 
profits."  And  again  :  "  The  rule  as  laid  down  by  the  New  York 
cases  has  never  been  adopted  by  the  Court  of  Chancery  in  this 
State.  It  has  not  been  the  practice  in  this  court  to  appoint  a 
receiver  in  a  mortgage  case  simply  on  the  ground  of  inadequacy  of 
the  mortgaged  premises  to  pay  the  debt,  and  the  mortgagor's  being 
insolvent.  This  court  has  gone  upon  the  ground,  that,  where  a  man 
takes  a  mortgage  security  for  his  debt,  and  permits  the  morgagor  to 
remain  in  possession,  if  there  is  a  default  in  payment,  the  mortgagee 
must  appropriate  the  property  in  the  usual  way  to  the  payment  of 
his  debt.  If  he  is  a  first  mortgagee,  and  wishes  possession,  he  must 
take  his  legal  remedy  by  ejectment.  If  he  is  a  second  mortgagee,  he 
takes  his  security  with  the  disadvantages  of  a  second  incumbrance. 
The  application  for  receivers  in  mortgage  cases  has  been  very 
unusual  in  this  court.  There  is  no  reported  case.  There  was  an 
application  to  Chancellor  Pennington,  and  it  was  successful ;  but  the 
circumstances  of  the  case  I  have  not  been  able  to  ascertain.  Subse- 
quently Chancellor  Halstead,  in  the  case  of  Best  v.  Shcrmier,  2 
Hals.  C.  R.  154,  refused  the  application  on  behalf  of  the  mortgagee, 
on  the  ground  that  such  had  not  been  the  practice  of  this  court." 
Id.  p.  43.  And  this  rule  was  approved  and  followed  in  the  later 
case  of  Frisbie  v.  Bateman,  9  C.  E.  Green,  28.    And  so  in  Beverley 


AND   MORTGAGEE.  43 

Except  in  Special  Cases.— Under  special  circumstances, 
however,  a  receiver  may  be  granted  at  the  instance  of 
a  mortgagee  having  the  legal  estate.  Where,  for  ex- 
ample, A.,  together  with  B.,  mortgaged  their  respec- 
tive estates  for  the  debt  of  A.,  but  it  was  provided  in 
the  deed  that  recourse  should  not  be  had  to  B.'s  es- 
tate unless  A.'s  estate  should  prove  insufficient,  and, 
upon  bill  of  foreclosure,  the  insufficiency  of  A.'s  estate 
was  denied,  a  receiver  was  appointed,  on  the  ground 
that  if  the  plaintiff  were  to  bring  ejectment,  it  would 
be  in  the  power  of  B.  to  deny  the  insufficiency  of  A.'s 

v.  Brooke,  4  Grattan,  209,  it  was  said  :  "  But  equity  will  not,  unless 
in  a  very  strong  case,  disturb  his  (the  mortgagee's)  possession  by 
the  appointment  of  a  receiver  on  the  application  of  a  subsequent 
mortgagee,  or  other  equitable  incumbrancer,  and  never  if  the  validity 
of  his  mortgage  be  unimpeached,  and  he  swears  there  is  anything 
due  to  him.  On  the  other  hand,  because  of  the  remedies  which  the 
mortgagee  of  the  legal  estate  has  in  his  own  hands,  equity  will 
never  appoint  a  receiver  on  his  application."  See  also  Williams  v. 
Robinson,  16  Conn.  524,  Morrison  v.  Buclcner,  Hempstead,  442, 
and  Oliver  v.  Decatur,  4  Cranch.,  C.  C.  It.  458.  These  conflicting 
authorities  may  perhaps  be  reconciled  upon  the  theory  stated  above, 
namely,  that  in  those  States  where  a  receiver  will  be  appointed,  the 
common  law  rule  that  the  legal  title  to  the  mortgaged  premises  is  in 
the  mortgagee,  and  that  he  is  entitled  to  bring  ejectment,  has  been 
modified  or  entirely  abrogated,  and  the  equitable  remedy  by  appoint- 
ment of  a  receiver  is  adopted  in  the  absence  of  relief  by  the  common 
law  action.  See  Hi/man  v.  Kelly,  1  Nevada,  187,  and  the  remarks 
in  that  case  on  Guy  v.  Ide,  6  Cal.  101. 

In  some  States  the  appointment  of  a  receiver  at  the  suit  of  a 
mortgagee  is  authorized  and  regulated  by  statute.  Such  is  the  case 
in  Ohio  (Seney's  Code,  Title  VIII.  Chap.  V.),  Kentucky  (Myers' 
Code  of  Practice,  95  and  9G),  and  Kansas  (General  Stats.  G77). 

After  a  decree  of  foreclosure,  the  appointment  of  a  receiver  to 
take  charge  of  the  mortgaged  premises  is  said  to  be  unusual.  Adair 
v.  Wright,  16  Iowa,  385. 

See  also,  on  the  general  subject,  Cheever  v.  The  Rutland  Rad- 
road  Co.,  39  Vermont,  653 ;  Noyes  v.  Rich,  52  Maine,  115. 


44  BETWEEN    MORTGAGOR 

estate,  and  that  the  defence,  if  set  up  at  law,  would 
lead  to  the  trial  of  questions  of  account  which  might 
be  tried  much  more  satisfactorily  in  equity .(d)  So, 
also,  a  mortgagee  of  leaseholds,  who  has  made  ad- 
vances to  preserve  the  premises  from  eviction  for 
non-payment  of  rent  by  the  mortgagor,  may  apply  for 
a  receiver,  notwithstanding  that  the  interest  on  the 
mortgage  debt  may  have  been  regularly  paid.(e)  So, 
also,  in  a  suit  on  behalf  of  a  number  of  grantees  of 
rent-charges  on  the  same  property,  who  had  powers  of 
distress  and  entry,  a  receiver  was  appointed  to  protect 
the  property  pending  the  litigation,  it  being  unten- 
anted, and  it  being  impossible  to  obtain  tenants,  for 
want  of  protection  against  the  powers  of  the  several 
grantees  of  the  rent-charge.(/)1 

Receiver  not  appointed  against  a  Prior  Legal  Mortgagee 
in  Possession  at  Suit  of  Second  Mortgagee.— The  court 
will  not  appoint  a  receiver  at  the  instance  of  a  second 
mortgagee  or  equitable  incumbrancer,  against  a  prior 


(d)  AcJdand  v.  Gravener,  31  (/)  White  v.  Smale,  22  Beav. 
Beav.  482.  73  ;  see  Cup  it  v.  Jackson,  13  Pri. 

(e)  Kelly  v.  Staunton,  1  Hog.  734;  White  v.  James,  2G  Beav. 
393.  191  ;  Hall  v.  Hurt,  2  J.  &  H.  7t>. 

1  And  where  the  whole  mortgage  debt  was  due,  and  large  arrears 
of  interest  had  accrued,  and  the  party  in  possession  had  neglected 
to  pay  the  taxes,  and  had  also  endeavored  todefeat  the  mortgage  by 
conveyances  under  tax-titles,  it  was  held  that  this  was  such  negligent 
and  unfair  conduct  as  would  justify  the  appointment  of  a  receiver. 
Finch  v.  Houghton,  1!'  Wis.  149.  And  see  Brown  v.  Chase,  Walk- 
er's Oh.  Rep.  43;  Callanan  v.  Shaw,  19  Iowa,  183;  Simpson  v. 
Roberts,  35  Georgia,  180;  Wall  Street  Ins.  Co.  v.  Loud,  20  LIow. 
IV.  II.  95  ;  and  Ckujelt  v.  Salmon,  5  Ciill  &  J.  314. 


AND   MOKTGAGEE.  45 

legal  mortgagee  in  possession,  as  long  as  anything 
remains  due  to  him  on  the  mortgage  security.  A 
prior  legal  mortgagee  in  possession,  having  anything 
clue  to  him,  is  entitled  to  retain  that  possession  until 
he  is  fully  paid.1  When  a  prior  mortgagee  is  in  pos- 
session, a  receiver  will  not  be  appointed  against  him 
except  on  his  own  confession  that  he  has  been  paid  off, 
or  on  his  refusal  to  accept  what  is  due  to  him.(^)  If 
he  swear  that  something  is  due  to  him  on  the  mort- 
gage security,  no  receiver  will  be  appointed  against 
him, (A)2  and  the  only  course  is  to  pay  him  off  according 
to  his  own  statement  of  the  debt.(7)  It  is  not  neces- 
sary, in  order  to  save  his  possession,  that  he  should  be 
able  to  state  with  any  great  precision  what  sum  is  due 
to  him.  It  is  enough  if  he  can  swear  that  something 
is  due  to  him  (however  small  it  may  be)  on  the  secu- 
rity.^-) If  he  distinctly  says  by  his  answer  that  some- 
thing is  due  to  him,  the  court  will  not  try  the  truth 
of  the  statement  by  affidavits  against  the  answer.(/) 
If,  however,  he  will  not  state  that  something  is  due  to 
him,  the  court  will  appoint  a  receiver.  (?n)     The  state- 

(g)  Berney  v.  Seivell,  1  J.  &  (k)     Chambers    v.    Goldwin, 

W.  659;  Hilesv.  Moore,  15  Beav.  cited  13  Yes.  378;   Quarrell  v. 

180.  BecJcford,  13  Ves.  378. 

(/()    Chambers    v.     Goldioin,  (I)  Rowe  v.  Wood,  2  J.  &  W. 

cited  13  Yes.  378 ;  Quarrell  v.  558. 

Bedford,  13  Ves.  378.  (m)   Chambers    v.     Goldwin, 

(i)  Berney  v.  Seivell,  1  J.  &  cited  13  Ves.  378 ;    Quarrell  v. 

W.  647  ;  Rowe  v.  Wood,  2  J.  &  Bedford,  13  Ves.  378 ;  Rowe  v. 

W.  557.  Wood,  2  J.  &  W.  558. 

1  Callanan  v.  Shaiv,  19  Iowa,  183. 

2  Quinn  v.  Britain,  3  Edw.  C.  R.  314. 


46  BETWEEN   MORTGAGOR 

ment  must,  in  order  to  satisfy  the  court,  be  a  distinct 
and  positive  statement.  It  is  not  enough  that  it 
should  merely  amount  to  a  vague  assertion, (n)  or  that 
he  should  say  in  general  terms  that  he  believes  that, 
when  the  accounts  are  taken,  some  particular  sums, 
and  parts  of  other  sums,  will  be  found  due,  without 
supporting  the  statements  by  any  accounts  which  will 
serve  to  test  its  truth. (o)  !Nbr  can  the  incomplete 
state  of  his  accounts  be  admitted  as  an  excuse  for  his 
not  being  able  to  say  that  something  is  due  to  him. 
If  a  mortgagee  in  possession  keep  his  accounts  so 
negligently  that  neither  he,  nor  a  subsequent  incum- 
brancer, nor  the  owner  of  the  estate,  can  ascertain 
what  is  due,  the  court  may  assume  that  nothing  is 
due,  and  appoint  a  receiver.(p)  Time,  however,  may 
be  given  him  to  make  an  affidavit  of  the  debt.(g) 

The  rule  that  a  receiver  will  not  be  granted  against 
a  prior  legal  mortgagee  in  possession  as  long  as  any- 
thing remains  due  on  the  mortgage  security,  applies 
equally,  whether  the  priority  is  original  or  has  been 
acquired  subsequently  by  an  assignment  of  the  mort- 
gage.^-) Where,  accordingly,  as  between  two  equitable 
incumbrancers,  the  one  later  in  date  had  acquired  the 
legal  possession,  the  court  would  not,  at  the  suit  of  the 
one  who  was  prior  in  date,  appoint  a  receiver.(s) 

(n)  Hiles  v.  Moore,  15  Beav.  (q)   Codrington  v.  Parker,  16 

181.  Ves.  469. 

(o)   lb.  (?•)  Berney  v.  Seioell,  1  J    & 

(p)  Codrington  v.  Parker,  16  W     048;    Hiles   v.   Moore,  15 

Ves.  469;    Hiles   \.  Moore,  L5  Beav.  181 ;  Bates  v.  Brothers,  17 

Beav.  180.  Jur.  1174,  2  Sm.  A-  <;.  509. 

(s)  Bales  v.  Brothers,  lb. 


AND   MORTGAGEE.  47 

The  rule  that  a  receiver  will  not  be  appointed  against 
a  prior  legal  mortgagee  in  possession,  only  applies  as 
long  as  anything  is  due  with  reference  to  which  the 
mortgagee  has  a  right  to  retain  possession. (i)  It  is  not 
the  rule  of  the  court  that  a  third  mortgagee,  who  has 
advanced  his  moneys  with  notice  of  the  second  mort- 
gage, and  who  has  taken  possession,  and  has  then 
bought  up  a  first  incumbrance,  can  retain  it  as  against 
the  second  mortgagee,  after  the  first  mortgage  has  been 
paid  ofF.(u)1 

The  rule  that  a  receiver  will  not  be  appointed  against 
a  prior  legal  mortgagee  in  possession,  has  been  held  to 
apply  in  favor  of  persons  in  possession,  entitled  to  a 
mortgage  and  prior  charges  on  the  estate,  though  they 
had  applied  part  of  the  rents  in  payment  of  the  interest 
on  those  charges,  instead  of  discharging  the  principal 
of  the  mortgage ;  it  being  the  proper  course,  as  be- 
tween the  tenant  for  life,  and  the  owners  of  the  in- 
heritance, to  keep  down  such  interest  out  of  the  rents, 
and  not  to  treat  the  surplus  rents,  after  payment  of 
the  interest  of  the  unpaid  part  of  the  principal,  as 
applicable  to  the  discharge  of  such  unpaid  principal.(x) 

In  order  to  deprive  an  equitable  mortgagee  of  his 

(t)  Codrington  v.  Parker,  16  (x)  Faulkner  v.  Daniel,  3 
Ves.  469.  Ha.  204  n.,  10  L.  J.  Ch.  N.  S.  34. 

(u)  Hiles  v.  Moore,  15  Beav. 
181. 

1  "Where  the  premises  are  of  doubtful  security,  the  first  mortgagee 
may  have  a  receiver  as  against  a  second  mortgagee  who  has  fore- 
closed and  bought  in  the  property.  New  York  Life  Ins.  Co.  v. 
Glass,  50  How.  Pr.  R.  81. 


48  BETWEEN    MORTGAGOR 

right  to  a  receiver,  the  possession  of  the  party  must  he 
such  a  possession  as  invests  him  with  a  title  to  receive 
the  rents  and  profits.  A  mere  possession  as  tenant  is 
not  sufficient.  An  incumbrancer  who  is  in  possession, 
not  in  that  character,  but  as  tenant,  cannot  set  up  his 
possession  as  tenant  as  a  reason  against  the  appoint- 
ment of  a  receiver.  A  second  mortgagee,  having  sold 
part  of  his  mortgage  to  the  tenant  in  possession  of 
part  of  the  premises,  applied  for  a  receiver;  the  tenant 
in  possession  objected  on  the  ground  that  the  rent 
which  he  was  to  pay  was  just  equal  to  the  interest 
he  was  entitled  to  receive  on  his  share  of  the  money 
due  on  the  mortgage,  and  that  therefore  it  would  but 
increase  the  expense  by  his  paying  into  court  as  rent 
what  he  must  receive  back  as  interest.  But  it  was 
held  that  the  defendant  could  not  unite  his  two  cha- 
racters of  mortgagee  and  tenant,  and  that  his  position 
being  as  tenant  could  not  be  set  up  against  the  other 
mortgagee.(y) 

In  particular  Cases  Receiver  appointed  against  Legal 
Mortgagee  in  Possession.— Although  a  receiver  will  not 
as  a  general  rule,  be  appointed  against  a  prior  legal 
mortgagee  in  possession,  the  court  may  if  a  case  of 
gross  mismanagement  of  the  estate  be  made  to  appear, 
deprive  a  mortgagee  of  possession  by  appointing  a  re- 
ceiver ;  but  to  warrant  such  an  interference  the  mis- 
management must  be  of  a  clear  and  specified  nature.^) 


(y)  Archdeacon  v.  Bowes,  3         (z)  Koive  v.  Wood,  2  J.  &  W. 
Aust.  752.  553. 


AND   MORTGAGEE.  49 

In  Howe  v.  Wood,(a)  a  motion  for  the  appointment  of 
a  receiver  upon  a  mortgagee  of  mines,  who  had  be- 
come a  partner  by  purchasing  shares  in  them,  upon 
the  ground  of  mismanagement,  and  excluding  the 
mortgagee,  upon  interference  was  refused  ;  it  not  being 
shown  and  the  mortgagee  not  admitting  that  the  mort- 
gage was  satisfied.  It  was  also  said  that  the  rights 
and  duties  of  a  person  in  that  situation  were  not  to 
be  governed  solely  by  principles  applicable  to  one  who 
stands  simply  in  the  character  of  a  mortgagee  or  part- 
ner, and  that  if  a  first  mortgagee  in  possession  can  in 
any  case  be  deprived  of  that  possession  on  the  ground 
of  mismanagement,  it  must  be  mismanagement  of  a 
clear  and  specified  nature. 

Though  it  could  not  appoint  a  receiver,  the  court, 
however,  ordered  that  the  plaintiff  had  a  clear  right, 
subject  to  the  equities  which  might  ultimately  be  de- 
clared between  the  parties,  to  insist  that  regular  ac- 
counts should  be  kept  of  all  receipts,  payments  and 
transactions  relative  to  the  mine,  and  to  have  constant 
access  for  the  purpose  of  inspecting  the  accounts ;  and 
declared  also  that,  subject  to  those  equities,  he  had  a 
clear  right  to  control  the  working  of  the  mine,  and 
that  if  he  was  impeded  in  the  exercise  of  any  of  those 
rights  he  should  come  to  the  court  again.(6)x 

(a)  Roive  v.  Wood..  2  J.  &  W.         (6)  lb.  559. 
553. 


1  A  receiver  with  modified  power  was  appointed  in  Tliompson  v. 
Van  Vechten,  5  Duer,  618.     In  that  case  a  junior  mortgagee  of  a 
steamboat  filed  a  bill  praying  for  a  receiver.     A  few  days  prior  to 
4 


50  BETWEEN   MORTGAGOR 

Receiver  appointed  against  Prior  Legal  Mortgagee,  if 
not  in  Possession.— Although  an  equitable  mortgagee  or 
incumbrancer  cannot  have  a  receiver  appointed  against 
a  prior  legal  mortgagee  in  possession,  the  case  is  dif- 
ferent if  the  prior  legal  mortgagee  is  not  in  possession. 
If  an  incumbrancer  having  a  prior  legal  estate  be  not 
in  possession,  whether  from  refusing  to  take  posses- 
sion or  from  being  otherwise  out  of  possession,  an 
equitable  incumbrancer  having  a  charge  subsequent  in 
date  may  have  a  receiver,  without  prejudice,  however, 
to  the  right  of  the  person  having  a  prior  legal  estate 
to  take  possession,  if  he  think  fit.(c)1 

(c)  Bryan  v.  Cormick,  1  Cox,  was  appointed  at  the  suit  of  a 

422  ;   Dalrner   v.    Dasluoood,  2  puisn6  incumbrancer,  and  the  first 

Cox,    383 ;    Davis  v.   Duke   of  legal  incumbrancer  was  not  enti- 

Marlborough,  2  Sw'.  135 ;  Berney  tied  to  take  possession  because 

v.  Sewell,  1  J.  &  W.  648 ;   Tan-  he  was  by  the  terms  of  his  se- 

field    v.    Irvine,   2    Russ.    151  ;  curity  obliged  before  doing  so  to 

Rhodes  v.  Mostyn,  17  Jur.  1007  ;  give  three  months    notice  after 

comp.  Coope  v.   Creswell,  12  W.  default  made  in  payment  of  the 

R.  299  ;  see  Langton  v.  Langton,  mortgage  money. 
7  D.  M.  &  G.  30,  where  a  receiver 


the  commencement  of  this  suit  the  U.  S.  Marshal  had  taken  posses- 
sion of  the  vessel  under  liens  of  material-men.  The  court  declined 
to  appoint  a  receiver  with  authority  to  take  possession,  but  appointed 
one  to  represent  in  the  U.  S.  District  Court  those  persons  who  had 
not  filed  libels,  and  to  receive  the  surplus,  if  any,  and  to  distribute 
it  under  the  control  of  the  court. 

1  In  an  earlier  case,  Phipps  v.  The  Bishop  of  Bath  $f  Wells j  2 
Pickens,  608,  where  the  first  mortgagee  was  not  in  possession,  a  re- 
ceiver was  refused,  Lord  Thurlow  saying,  "  a  second  mortgagee,  the 
mortgagor  living,  cannot  have  a  receiver  without  the  consent  of  the 
first  mortgagee,  because  the  court  cannot  prevent  the  first  mortgagee 
from  bringing  an  ejectment  against  the  receiver  as  soon  as  he  is  ap- 


AND   MORTGAGEE.  51 

If  a  mortgagee  will  not  take  possession,  a  receiver 
will  be  appointed  without  his  consent.  The  court 
will  not  allow  a  prior  legal  incumbrancer  to  object  to 
the  appointment  of  a  receiver  by  anything  short  of  a 
personal  assertion  of  his  legal  right,  and  on  taking 
possession  himself.(d)1  If  care  be  taken  that  a  prior 
mortgagee  is  not  prejudiced,  he  has  nothing  to  do 
with  the  motion  for  a  receiver.  He  may  enter  as 
mortgagee  ;  and  the  appointment  of  a  receiver  will 
not  prejudice  that  right.  The  habit  of  the  court  on 
such  a  motion  is  not  to  look  at  mortgagees  further 
than  to  see  that  they  are  not  prejudiced.(e) 

The  court  may  in  a  suit  instituted  by  a  puisne* 
mortgagee  appoint  a  receiver,  although  the  first  mort- 
gagee has  by  his  deed  of  security  a  power  to  appoint 
one.(/) 

The  appointment  of  a  receiver  may  be  made  at  the 
suit  of  a  puisne  mortgagee  or  other  legal  incumbrancer, 
for  the  purpose  of  keeping  down  the  interest,  even 
though  the  applicant  be  unable  at  the  time  to  enforce 
the  usual  mortgagee's  remedies,  as  if  he  have  cove- 
nanted not  to  call  in  the  mortgage  debt  during  a  cer- 
tain time  ;{g)  and  though  by  the  transaction  itself  the 

(d)  Silver  v.  Bishop  of  Nor-  (/)  Bordv.  Tollemache,  1  N. 
luich,  3  Sw.  114  n.  R.  177. 

(e)  Norway  v.  Rowe,  19  Ves.  (g)  Burrows  v.  Molloy,  2  J.  & 
153,  per  Lord  Eldon.  L.  521. 


pointed ;"  but  the  later  cases  (see  note  c)  have  established  the  rule 
as  stated  in  the  text. 

See  also  Cortleyeu  v.  Hathaivay,  3  Stockton  39-42 ;  State  of 
Maryland  v.  The  Northern  Central  R.  R.  Co.,  18  Maryl.  213. 

1  See  Wiswall  v.  Sampson,  14  Howard,  65. 


52  BETWEEN   MORTGAGOR 

security  gave  the  creditor  no  right  to  he  considered 
as  a  mortgagee  of  the  estate,  but  only  made  the  rents 
a  fund  for  the  payment  of  interest  and  of  the  pre- 
miums upon  a  policy  of  insurance,  out  of  the  produce 
of  which  the  principal  was  to  be  paid.(A) 

Arrears  of  Interest  a  Ground  for  Keceiver .— It  is 
enough  to  grant  a  receiver  at  the  suit  of  a  secoud  or 
puisne"  mortgagee  that  the  payment  of  interest  is  in 
arrear,(z)  or  that  there  is  reason  to  apprehend  that  the 
property  is  insufficient  to  pay  the  charges,  or  is  in  dan- 
ger of  being  evicted  {e.g.,  for  non-payment  of  head 
rent).(A)1 

Parties.— To  a  bill  by  second  or  third  mortgagees  for 
a  receiver,  it  is  not  necessary  to  make  the  first  mort- 
gagees parties  to  the  suit.(^) 

(h)   Taylor  v  Emerson,  4  Dr.  (k)   Herbert  v.  Greene,  3  Ir. 

&  War.  122.  Ch.  273 ;  see  Plaskett  v.  Dillon,  1 

(i)    White  v.  Bishop  of  Peter-  Hog.  201 ;  Racket  v.  Snow,  10 

borough,  3  Sw.  109  ;  Plaskett  v.  Ir.  Eq.  220. 

Dillon,  1  Hog.  201 ;   Tanfield  v.  (I)  Dalmer  v.  Dashivood,  2 

Irvine,  2  Russ.  151 ;    Wilson  v.  Cox,   383;    Davis   v.  Duke   of 

Wilson,  2  Keen,  249;  see  Hop-  Marlborough,  1  Sw.  77  ;  but  see 

kins  v.  Worcester  and  Birming-  Price  v.  Williams,  Coop.  31. 
ham  Canal  Co.,  L.  R.  6  Eq.  447. 


1  It  is  said  in  Post  v.  Dorr,  4  Edw.  C.  R.  412,  to  be  an  established 
rule  that  a  second  or  third  mortgagee  who  succeeds  in  getting  a 
receiver  appointed  becomes  thereby  entitled  to  the  rents  collected 
during  the  appointment,  although  (in  New  York)  a  prior  mortgagee 
steps  in  and  obtains  a  receivership  in  his  behalf,  and  fails  to  obtain 
enough  out  of  the  property  to  pay  his  debt.  This  is  on  the  principle 
that  the  mortgagee  acquires  a  specific  lien  on  the  rents  by  obtaining 
the  appointment  of  a  receiver  of  them. 

See  also  Howell  v.  Ripley,  10  Paige,  C.  R.  43 ;  Thomas  v.  Brig- 
stocke,  4  Russ.  64;  post,  Chap.  VI. 


AND    MORTGAGEE.  53 

Mortgagee  of  Tolls,  &c,  may  have  a  Receiver.— A 
mortgagee  of  turnpike  or  other  tolls  may  come  to 
the  court  for  a  receiver,  instead  of  taking  steps  to  ob- 
tain possession  at  law.(m)  "  Under  an  ordinary  mort- 
gage," said  Turner,  L.  J.,(n)  "  the  mortgagee  when  he 
enters  into  possession  holds  for  his  own  benefit.  Under 
a  mortgage  of  this  description  he  becomes,  when  he 
enters  into  possession,  liable  to  the  other  mortgagees 
to  the  extent  of  their  interest.  This  liability  would 
entitle  him,  upon  possession  taken,  to  come  to  the 
court  to  have  it  ascertained  what  is  due  upon  the 
other  mortgages,  and  for  a  receiver  to  aid  him  in  the 
due  application  of  the  tolls ;  and  if  this  court  can  be 
called  upon  to  appoint  a  receiver  immediately  after 
the  possession  recovered  at  law,  it  can  hardly  be  neces- 
sary that  the  proceeding  at  law  should  first  be  taken." 

Equitable  Mortgagee  may  have  a  Receiver.— A  receiver 
may  be  appointed  on  the  application  of  an  equitable 
mortgagee  in  a  foreclosure  suit  or  other  suit  for  enforc- 
ing his  security  against  the  mortgagor  in  possession 
having  the  legal  estate. (o)  So,  also,  a  receiver  may  be 
appointed  on  the  application  of  an  equitable  mort- 
gagee against  a  person  in  possession  under  agreement 
of  assignment  from  a  person  having  the  legal  title.(p) 
In  Holmes  v.  Bell(q)  a  receiver  of  the  rents  and  profits 

(m)  Lord  Crewe  v.  Edleston,  620 ;   see   Crowe  v.  Halliday,  2 

1  D.  &  J.  93.  Ridg.  P.  C.  58. 

(n)  lb.  109.  (_p)  Reid  v.  Middleton,  T.  &  R. 

(o)  Reid  v.  Middleton,  T.  &  R.  455. 

255  ;  Aberdeen  v.  Chitty,  3  Y.  &  (q)  2  Beav.  298. 
C.  379  ;  Meaden  v.  Sealey,  6  Ha. 


54  BETWEEN   MORTGAGOR 

of  an  estate  belonging  to  the  defendants  as  tenants  in 
common,  was  appointed  at  the  suit  of  equitable  mort- 
gagees, though  one  of  the  mortgagors  was  out  of  the 
jurisdiction,  the  whole  of  the  rents  being  received  by 
the  other. 

Form  of  Order  for  Receiver  at  Suit  of  Subsequent  In- 
cumbrancers.—If  a  receiver  is  appointed  on  behalf  of 
one  of  several  incumbrancers,  the  order  generally  con- 
tains a  declaration  that  the  appointment  of  the  re- 
ceiver is  to  be  without  prejudice  to  the  rights  of,  or  is 
not  to  affect  the  prior  incumbrancers  on  the  estate, 
who  may  think  proper  to  take  possession  of  the  estates 
and  premises  by  virtue  of  their  respective  securities ; 
and  usually  directs  that  the  receiver  do,  out  of  the 
rents  and  profits  to  be  received  by  him,  keep  down 
the  interest  and  payments  in  respect  of  such  incum- 
brancers, according  to  their  priorities,  and  be  allowed 
the  same  in  passing  his  accounts. (>•) 

Whether  a  Receiver  can  be  had  in  a  Redemption  Suit. — 
There  is  a  difficulty  in  granting  a  receiver  in  a  re- 
demption suit,  because  it  is  not  generally  competent 
for  a  defendant  to  apply  for  relief  against  a  plaintiff 
without  filing  a  cross-bill.^)  A  receiver  was  accord- 
ingly refused  on  an  application  after  the  hearing,  to 
add  the  appointment  of  a  receiver  to  the  decree  ;  but 


(r)  Sot.  on  Doer.  1026,  1027;  (s)  See    }Y>/)nir  v.   Griffith,! 

see  Lewis  v.  Zouche,  2  Sim.  388,  Sim.  &  St.  147 ,  Brotun  v.  New- 

:','.):',:  Smith  v.  Lord  Effinham,  all,  2  M.  &  0.  574,  infra. 
2  Beav.  232. 


AND   MORTGAGEE.  55 

it  was  said  that  perhaps  it  might  have  been  done  on 
petition,  upon  due  notice  being  given. (t)  And  even 
when  the  plaintiff  has  asked  for  a  receiver  by  his 
bill,  the  court  will  not  make  the  appointment  on  the 
defendant's  application,  if  the  plaintiff  oppose  it,  but 
no  costs  will  be  given  under  such  circumstances  to  the 
plaintiff.(w) 

Receiver  is  in  Law  the  Agent  of  the  Mortgagor  within  3 
&  4  Will.  4,  c.  71.— When  an  estate  is  mortgaged,  and  a 
receiver  is  appointed  at  the  suit  of  mortgagees,  the 
receiver  is,  in  law,  the  agent  of  the  mortgagor,  the 
owner  of  the  estate  subject  to  the  mortgage,  and  pay- 
ment by  him  in  pursuance  of  the  order  is  payment  by 
the  legal  agent  of  the  party  liable  to  pay  within  the 
40th  section  of  3  &  4  Will.  4,  c.  27.(x) 


SECTION  V. — IN  CASES  BETWEEN  DEBTOR  AND  CREDITOR. 

Receiver  Appointed  at  Suit  of  General  Creditor. — 
General  creditors  may,  like  specific  appointees  of  pro- 
perty, have  a  receiver  of  the  property  of  a  debtor.Q/) 
In  a  case,  accordingly,  where  it  is  made  to  appear  that 
an  executor  or  devisee  of  the  real  estate  is  wasting  the 
real  or  personal  estate,  a  receiver  will,  it  would  seem, 
be  appointed  at  the  instance  of  single  contract  credi- 

(t)  Barlow  v.  Gains,  8  Beav.  (y)   Owen  v.  Homan,  4  H.  L. 

330.  1036;  Oldfield  v.  Cobbett,  4  L.  J. 

(u)  Robinson  v.    Haclley,  11  Oh.  N.  S.  272  ;  see  Largan  v. 

Beav.  614.  Bowen,  1  Sch.  &  Lef.  296. 

(x)  Chinnery  v.  Evans,  11  H. 
L.  134. 


56  BETWEEN    DEBTOR 

tors.(^)  So  also  where  upon  bill  by  creditors  claiming 
satisfaction  out  of  real  and  personal  assets,  it  appeared 
that  the  real  estate  must  eventually  be  responsible,  as 
there  was  no  personal  estate  to  be  applied  to  discharge 
the  debts,  a  receiver  was  appointed. (a)  So  also  in  a 
case  where  a  bill  was  filed  by  creditors  for  satisfaction 
out  of  the  personal  assets,  and  if  those  were  not  suffi- 
cient, out  of  the  real  estate,  descended  to  an  infant 
heir,  the  court  appointed  a  receiver  of  the  real  estate 
descended.(6) 

If  the  real  estates  over  which  a  receiver  is  sought 
are  in  mortgage,  but  the  mortgagee  is  not  in  posses- 
sion, a  receiver  will  be  appointed  on  the  application  of 
creditors,  without  prejudice  to  the  right  of  the  mort- 
gagee to  take  possession.(c) 

Though  general  creditors  may,  like  specific  ap- 
pointees of  property,  have  a  receiver  of  the  property 
of  the  debtor,  a  strong  case  must  be  made  out  to  war- 
rant the  interference  of  the  court.  The  court  will 
not,  unless  a  clear  case  be  established,  deprive  a  per- 
son of  property  in  which  the  claimant  has  no  specific 
claim,  in  order  that,  if  he  establish  his  claim  as  a 
creditor,  there   may  be  assets   wherewith   to  satisfy 


(z)  See  Keene  v.  Riley,  3  Mer.  (b)  Sweet  v.  Partridge,  1  Cox, 

436.  433  ;  2  Dick.  696  ;  see  Lechmere 

(«)  Jones  v.  Pugh,  8  Ves.  71 ;  v.  Brasier,  2  J.  &  W.  287. 

Chalk  v.  Paine,  13  Jur.  981;  see  (c)  Bryan  v.  Cormtck,  1  Cox, 

Coope  v.   Cresswcll,  12   W.   R.  422  ;   see  Berney  v.  Seivell,  1  J. 

299  ;  Topping  v.  Searson,  6  L.  T.  <fc  W.  648  ;  supra,  p.  50. 
N.  S.  450. 


AND   CREDITOR.  57 

it.(c^)1  The  anomalous  nature  of  the  right  when  the 
plaintiff  is  claiming  as  a  general  creditor  of  a  married 
woman,  and  is  seeking  payment  out  of  her  separate 
estate,  and  the  inability  of  the  court  to  govern  the 
proceedings  in  equity  in  such  a  case  by  rules  strictly 
conformable  to  those  which  regulate  an  action  at  law, 
may  warrant  the  interim  interference  by  a  receiver. 
But  a  chance  of  doing  a  wrong  to  the  defendant  in 
such  a  case  is  certainly  much  greater  and  more  appa- 
rent than  when  a  right  asserted  is  a  right  against 
some  specific  fund  or  estate.(e)2 


(d)  Owen  v.  Roman,  4  H.  L.  (e)  Owen  v.  Homan,  4  H.  L. 
1036.  1036. 

1  See  Uhl  v.  Dillon,  10  Maryland,  500 ;  Hubbard  v.  Hubbard, 
14  Id.  356  ;  Brady  v.  Furlow,  22  Geo.  613 ;  McGoldrickv.  Slevin, 
43  Ind.  522  ;  and  Warfield  v.  Owen,  4  Gill,  380.  In  Cohen  v. 
Myers,  42  Georgia,  46,  a  receiver  was  appointed  at  the  suit  of  a 
creditor,  who  had  not  obtained  judgment.  The  circumstances  of  that 
case,  however,  were  somewhat  peculiar.  See  also  Kuhl  v.  Martin, 
11  C.  E.  Green,  60,  where  a  receiver  was  appointed. 

2  In  Todd  v.  Lee,  15  Wisconsin,  365,  an  action  was  brought  to 
subject  the  separate  property  of  the  defendant,  a  married  woman,  to 
the  payment  of  debts  incurred  by  her  in  separate  trade.  The  action 
was  commenced  in  the  County  Court,  where  an  injunction  was  granted 
and  a  receiver  appointed.  This  decision  was  overruled  by  the  Cir- 
cuit Court,  the  injunction  dissolved,  and  the  order  for  a  receiver 
vacated.  But  upon  appeal  to  the  Supreme  Court  the  decree  of  the 
Circuit  Court  was  in  its  turn  reversed,  the  court  saying  :  "  The  issuing 
of  the  injunctions  and  appointment  of  the  receiver  in  these  cases 
was  under  the  circumstances  undoubtedly  correct.  They  take  the 
place  of  the  process  of  attachment  when  necessary  and  proper  at 
law.  Such  was  the  practice  under  the  former  system  of  equity, 
when  there  were  no  trustees  of  the  separate  estate,  and  the  fund  was 
in  danger  of  being  wasted  or  put  beyond  the  reach  of  creditors.  It 
was  the  course  pursued  in  Lilia  v.  Airey,  1  Vesey,  277,  and  in 
Methodist  Episcopal  Church  v.  Jaques,  1  John.  C.  E.  450.     Aud 


58  BETWEEN   DEBTOR 

Receiver  Appointed  at  Suit  of  Equitable  Creditors.— 
The  doctrine  of  the  court  as  to  entertaining  applica- 
tions for  a  receiver  at  the  suit  of  equitable  creditors, 
has  been  thus  stated  by  Lord  Eldon  in  Davis  v.  Duke 
of  Marlborough :(f)  "The  rule  I  take  to  be  that  the 
court  will  on  motion  appoint  a  receiver  for  an  equita- 
ble creditor,  or  a  person  having  an  equitable  estate,  in 
this  sense  without  prejudice  to  persons  who  have  prior 
legal  estates,  that  it  will  not  prevent  their  proceeding 
to  take  possession  if  they  think  proper  ;{g)x  and  with 
regard  to  persons  having  prior  equitable  estates,  the 
court  takes  care  not  to  disturb  prior  equities,  and  for 
that  purpose  directs  inquiries  to  determine  priorities 
among  equitable  incumbrancers,  permitting  legal  credi- 
tors to  act  against  the  estates  at  law,  and  settling  the 
priorities  of  equitable  incumbrancers.  Provided  it  is 
satisfied  in  that  stage  that  the  relief  prayed  by  the  bill 
will  be  given  when  a  decree  is  pronounced,  the  court 
will  not  expose  parties  claiming  that  relief  to  the  dan- 
ger of  losing  the  rents,  by  not  appointing  a  receiver  of 
an  estate  on  which  it  is  admitted  they  cannot  enter."2 
In  favor  of  equitable  creditors  the  court  will  appoint 

(/)  2  Sw.  137,  138.  v.    Cormiek,  1  Cox.  422;  Angel 

(g)   But  they  must  first  obtain     v.  Smith,  9  Ves.  335. 
the  leave  of  the  court.     Bryan 


instances  of  an  injunction  where  there  were  trustees  are  very  nume- 
rous."    See,  in  this  connection,  Penn  v.  Whiteheads,  12  Grattan,  74. 

1  A  court  of  equity  will  not  interfere  by  injunction  and  receiver 
on  behalf  of  one  creditor  to  restrain  another  from  obtaining  satisfac- 
tion by  means  of  a  prior  levy  upon  the  debtor's  goods.  Graven- 
stine's  Appeal,  49  Penna.  St.  R.  310.  See  also  Ellicott  v.  U.  S.  Ins. 
Co.,  7  Gill,  319;  and  Waring  v.  Robinson,  Hoffman,  C.  It.  524. 

2  See  Cortleyea  v.  Hathaway,  3  Stockton,  42-43. 


AXD    CREDITOR.  59 

a  receiver  over  property  against  which  legal  creditors 
might  obtain  execution.  If  courts  of  law  hold  that 
certain  property  may  be  taken  on  legal  execution, 
courts  of  equity  cannot  consistently  hold  that  it  is  not 
to  be  taken  on  equitable  execution.  There  is  no  prin- 
ciple on  which,  supposing  a  legal  creditor  to  have  the 
right  to  take  an  estate  in  execution,  it  should  not 
equally  extend  to  an  equitable  creditor.(A)  If  the 
estate  is  in  the  possession  of  judgment  creditors,  and 
the  plaintiff  has  acquired  an  estate  which,  if  it  had 
been  legal,  might  enable  him  to  turnout  the  judgment 
creditors,  but  being  equitable,  he  cannot  proceed  at 
law,  the  case  is  that  of  an  equitable  creditor  with  an 
estate  for  securing  his  debt,  applying  to  this  court  to 
have  execution  given  to  him  here.(i)  The  principle 
on  which  a  receiver  is  appointed  in  this:  when  a  bill 
is  filed  stating  that  the  plaintiff  has  an  equitable 
estate,  and  consequently  cannot  recover  at  law,  but  it 
is  clear  that  he  may  in  equity,  the  court  will  appoint 
a  receiver,  not  disturbing  those  entitled  to  previous 
beneficial  interests.(A-) 

The  court  will  not  appoint  a  receiver  at  the  suit  of 
an  equitable  creditor,  however  clear  his  claim  may  be, 
unless  it  is  satisfied  that  the  property  is  in  danger,  or 
unless  there  be  some  other  equity  upon  which  to  found 
the  application.  In  a  case  where  a  testator  had  de- 
vised his  estate  to  a  man  for  life,  without  impeachment 
of  waste,  "  excepting  voluntary  waste  in  pulling  down 
houses  and  not  rebuilding  the  same,  or  others  of  equal 

(h)  2  Sw.  132,  2  Wils.  Ch.  150.         (&)  lb.  154. 
(*)  2  Wils.  Ch.  151. 


60  BETWEEN   DEBTOR 

or  greater  degree,"  the  tenant  for  life  pulled  down  the 
mansion-house  with  the  intention  of  forthwith  build- 
ing a  better  one  on  the  site,  and  was  proceeding  with 
all  reasonable  dispatch  to  carry  such  intention  into 
effect.  There  being  no  pretence  for  saying  that  he 
was  not  proceeding  to  fulfil  his  obligation,  the  party 
entitled  to  the  next  vested  remainder  was  held  not 
entitled  to  have  a  receiver  of  the  rents  appointed,  in 
order  to  secure  the  rebuilding  of  the  mansion. (I) 

If  a  subsequent  incumbrancer  be  in  possession  of  the 
estate,  and  a  prior  legal  incumbrancer  cannot  recover  at 
law  by  ejectment,  by  reason  of  some  outstanding  prior 
legal  estate,  a  receiver  may  be  appointed. (m)  In  White 
v.  Bishop  of  Peterborough,{n)  a  case  which  occurred 
between  the  years  1803  and  1817,  when  a  judgment 
creditor  might  take  in  execution  the  profits  of  a  rec- 
tory, a  sequestration  creditor  had  got  possession  of  the 
profits  of  the  rectory.  The  sequestration  creditor  was 
in  fact  the  third  incumbrancer.  The  first  incum- 
brance was  a  demise  for  years  to  secure  an  annuity. 
The  second  incumbrance  was  also  an  annuity  secured 
by  a  term.  The  sequestration  creditor  having  got 
into  possession,  Lord  Eldon,  on  bill  filed  by  the  second 
incumbrancer,  held  that  he  was  entitled  to  a  receiver, 
inasmuch  as  he  could  not  succeed  in  ejectment  because 
there  was  a  prior  legal  estate  which  might  have  been 
set  up  against  him.     "  Where,"   said  Lord  Eldon,(o) 

(/)   Miclddhwaite   v.  Mickle-        (n)  3  Sw.  109. 
thwaite,  1  D.  &  J.  504.  (o)  lb.  UG. 

(m)  Silver  v.  Bishop  of  Nor- 
wich, 3  Sw.  116  n. 


AND   CREDITOR.  61 

"a  creditor  of  a  clergyman  seeks  to  obtain  payment 
of  his  debt  by  judgment  and  sequestration,  he  is,  in 
contemplation  of  this  court,  in  the  same  state  as  any 
other  creditor  who  has  taken  out  execution,  and  a 
creditor  having  taken  out  execution  cannot  hold  pro- 
perty against  an  estate  created  prior  to  his  debt.  If 
by  elegit  one  creditor  is  in  possession  of  one  moiety, 
and  another  creditor  of  another  moiety,  that  is  good 
against  the  creditor;  but  if  there  is  an  antecedent 
estate  by  virtue  of  which  an  ejectment  may  be  brought, 
it  does  not  appear  that  against  that  estate  the  creditors 
may  hold."  So  also  it  was  held  in  Silver  v.  Bishop  of 
Norwick(j))  that  the  grantee  of  an  annuity,  or  creditor 
whose  charge  was  secured  by  being  vested  in  the  trus- 
tees of  a  term,  was  entitled  to  a  receiver  as  against 
judgment  creditors  who  have  obtained  possession 
under  writs  of  elgeit  or  sequestration,  if  there  is  a 
legal  estate  prior  to  the  term  securing  his  annuity, 
which  bars  him  from  proceeding  at  law  by  ejectment. 
The  plaintiff  should  show  on  the  pleadings  that 
there  is  such  an  estate  as  would  defeat  proceedings  in 
ejectment ;  if  it  does  not  appear  on  the  pleadings  that  it 
cannot  be  sustained,  a  receiver  cannot  be  appointed.^) 

Receiver  Appointed  at  Suit  of  Judgment  Creditors.— A 
judgment  creditor  who  has  sued  out  execution  on  his 
judgment,  but  finds  himself  defeated  by  a  prior  title 
extending  to  the  whole  interest  of  the  debtor  in  the 
property  upon  which  the  judgment  is  proposed  to  be 

(p)  3  Sw.  112  n.  (q)  Silver  v.  Bishop  of  Nor- 

loich,  2  Sw.  116  n. 


62  BETWEEN    DEBTOR 

executed,  and  so  precluded  from  obtaining  execution, 
or  the  benefit  of  an  elegit  or  ji.  fa.,  has  a  right  to  come 
to  the  court  for  the  appointment  of  a  receiver  of  the 
proceeds  of  the  estate  of  the  debtor.(r)1 

(?•)     Curling   v.    Marquis    of  appoint  a  receiver  upon  petition 

Townshend,  19  Ves.  632  ;  Plas-  by  a  judgment  creditor  was  for- 

kett  v.  Lord  Dillon,  2  Bligh,  N.  merly    very  extensive.      5<  8c   6 

S.239;  Gouthwaitev.  Rip>pon,3  Will.  4,  c.  55,  ss.  31,32;  and  3 

Jur.  7,  8  L.  J.  Oh.  N.  S.  139;  &  4  Vict.,  o.  105,  ss.  21,  23,  24; 

Hollis  v.  Bryant,  6   Jur.    356 ;  see  Reilly  on  Petitions.     It  has, 

Smith  v.  Hurst,  1   Coll.  705,  10  however,    been   much    restricted 

Ha.  48  ;  Rhodes  v.  Lord  Mostyn,  by  more  recent  legislation  ;  12  & 

17  Jur.  1007 ;  Partridge  v.  Fos-  13  Vict.,  c.  95;  13  &  14  Vict.,  c. 

ter,  34  Beav.  1 ;   see  Re    Coiv-  29 ;  19  &  20  Vict.,  c.  77,  ss.  2,  3. 

bridge   Railway    Co.,  L.   R.    5  See  Reilly  on  Summ.  Petit.  374 

Eq.  417.     The  jurisdiction  of  the  et  seq. 
Court  of  Chancery  in  Ireland  to 

1  In  New  York,  independently  of  the  provisions  in  the  Revised 
Statutes,  it  had  been  held,  in  Hadden  v.  Spader,  20  John.  554,  that 
a  judgment  creditor  whose  execution  had  been  returned  unsatisfied 
might  come  into  chancery  to  reach  an  interest  of  the  debtor  in  pro- 
perty which  could  not  be  sold  under  the  execution  at  law  ;  see  Farn- 
ham  v.  Campbell,  10  Paige.  C.  R.  601 ;  Suydam  v.  North  Western 
Ins.  Co.,  51  Penna.  St.  R.  398  ;  Bispham's  Equity,  469  (§  527).  In 
such  cases  it  is  the  duty  of  the  complainant  to  apply  for  a  receiver ; 
Osbom  v.  Ileyer,  2  Paige,  C.  R.  342 ;  and  his  appointment  is  almost 
a  matter  of  course;  Bloodgood  v.  Clark,  4  Id.  577;  Corning  v. 
White,  2  Id.  568 ;  Bank  v.  Schermerhom,  Clarke,  214  ;  Austin  v. 
Figueira,  7  Paige,  C.  R.  56  ;  Congden  v.  Lee,  3  Edw.  C.  R.  304 : 
Gregory  v.  Gregory,  33  N.  Y.  1 ;  but  not  when  there  is  property 
which  can  be  seized  under  afi.fa.,  Parker  v.  Moore,  3  Id.  234.  In 
Sylvester  v.  Reed,  3  Edw.  0.  It.  296,  a  receiver  was  refused  because 
the  defendant  had  died  pendente  lite.  It  was  said  that  under  such 
circumstances  the  plaintiff  ought  to  come  in  under  the  general 
administration  of  the  decedent's  estate.  But  a  different  conclusion 
has  recently  been  reached  by  the  Court  of  Appeals  in  Brown  v. 
A/W/rV,,  42  New  York  (3  Hand),  26.  This  subject  in  this  State  is 
now  regulated  by  statute. 

In  New  Jersey  a  judgment  creditor  who  has  exhausted  his  remedy 


AND   CREDITOR.  63 

A  judgment  or  other  specialty  creditor  cannot,  how- 
ever, maintain  any  suit  at  all  till  he  has  taken  the 
steps  necessary  for  acquiring  a  charge  upon  the  pro- 
perty. He  must  go  up  to  the  point  at  which  he  will 
be  met  by  the  obstruction,  before  he  can  say  that  he  is 
embarrassed  by  it.  Till  he  can  do  so,  he  can  have  no 
locus  standi  in  equity. (s)  Before  being  able  to  procure 
relief  in  equity,  the  creditor  must  show  by  his  bill 
that  he  has  proceeded  at  law  to  the  extent  necessary 
to  give  him  a  complete  title.  He  must  show  that  he 
has  sued  out  the  writ  of  ji.  fa.  or  elegit,  the  execution 
of  which  is  avoided,  or  the  defendant  may  demur.(^) 
A  creditor  is  obliged  to  sue  out  the  wit,  even  in  the 
case  where  the  debtor's  estate  is  a  mere  equity  of  re- 
demption, and  therefore  incapable  of  extension.(u) 

If  he  has  sued  out  an  elegit,  a  judgment  creditor 
may  have  a  receiver  of  the  real  estate  of  his  debtor 
appointed  without  delay.(x)  But  if  no  elegit  has  been 
sued  out,  and  the  judgment  creditor  proceeds  under 

(s)  Per  Christian,  L.  J.,  Ir.  L.  (x)   Smith  v.  Hurst,  1    Coll. 

R.  2  Eq.  542.  705  ;  Rhodes  v.  Lord  Mostyn,  17 

(t)  Mitf.  Plead.  101 ;  Smith  v.  Jur.  1007  ;  Partridge  v.  Foster, 

Hurst,  1  Coll.  705,  10  Ha.  48.  34  Beav.  1. 

(u)    Re   Cowbridge  Railway 
Co.,  L.  R.  5  Eq.  417. 

by  execution,  may  proceed  in  equity  against  the  choses  in  action  of 
his  debtor,  and  have  them  collected  by  a  receiver.  Tantum  v. 
Green,  6  C.  E.  Green,  364.  In  some  cases  a  receiver  may  be  ap- 
pointed in  proceedings  in  divorce  in  aid  of  a  decree  for  alimony  ;  see 
Barker  v.  Dayton,  28  Wis.  367.  But  it  seems  that  such  an  appoint- 
ment will  not  be  made  in  the  first  instance,  but  only  in  the  event  of 
the  husband  failing  to  give  security,  or  of  the  surety's  default. 
Davis  v.  Davis  1  Hun,  444. 


64  BETWEEN   DEBTOR 

the  statute  1  &  2  Vict.,  c.  110,  a  receiver  will  not  be 
appointed  of  the  real  estate  of  the  debtor,  unless  one 
year  has  elapsed  from  the  time  of  entering  up  the 
judgment.(y)  By  a  late  act,  27  &  28  Vict.,  c.  112,  s.  1, 
however,  it  is  declared  that  no  judgment  entered  up 
thereafter  shall  affect  any  land,  until  such  land  shall 
have  been  actually  delivered  in  execution  by  virtue  of 
a  writ  of  elegit,  and  the  writ  shall  have  been  duly  re- 
gistered, but  that  the  judgment  creditor  to  whom  land 
has  been  actually  delivered  in  execution,  shall  be  en- 
titled forthwith  to  have  the  benefit  of  his  judgment. 

If  there  are  prior  or  outstanding  mortgages,  but  the 
mortgagees  are  not  in  possession,  or  refuse  to  take  pos- 
session, the  court  will  appoint  a  receiver  of  the  mort- 
gaged premises  at  the  suit  of  judgment  creditors, 
without  prejudice,  however,  to  the  rights  of  the  mort- 
gagees to  take  possession,  if  they  think  fit.(>) 

As  soon  as  the  writ  of  ji.  fa.  is  in  the  hands  of  the 
sheriff,  a  receiver  of  the  chattels  of  the  debtor  will  be 
appointed  at  the  suit  of  the  judgment  creditor,  if  the 
property  is  in  danger.(a)1 

A  judgment  creditor  under  an  execution  takes  all 
that  belongs  to  the  debtor,  and  nothing  more.  The 
judgment  operates  as  a  charge  upon  the  beneficial 
interest  of  the  debtor,  and  only  attaches  upon  what  is 
at  the  time  it  is  entered  up  or  afterwards  becomes  his 

(v)  lb.  (a)   Smith  v.   Hurst,   1    Ooll. 

(z)  Rhodes  v.  Mostyn,  17  Jur.  705;  sec  Blanchard  v.  Caw- 
1007  ;  sec  supra,  p.  50.  thorne,  4  Sim.  566. 


1  See  Hose  v.  Bevan,  10  Maryl.  4GC. 


AND   CKEDITOR.  65 

property.  The  creditor  takes  the  property  subject  to 
every  incumbrance  to  which  it  was  subject  in  the 
hands  of  the  debtor.  If  the  debtor  has  a  legal  estate, 
subject  to  an  equity,  the  judgment  will  be  a  charge 
upon  the  estate,  subject  to  the  same  equity.  In  the 
case  of  an  equitable  estate,  it  will  be  a  charge  upon 
the  equitable  estate.  A  judgment  creditor  does  not, 
by  giving  notice  or  taking  out  a  stop  order,  acquire 
priority  over  a  prior  mortgagee  or  assignee  who  has 
not  done  so.(6) 

A  judgment  creditor  may,  under  the  provisions  of 
27  &  28  Vict.,  c.  112,  s.  4,  have  an  order  for  the  sale  of 
land.(c) 

The  judgment  creditor  of  a  corporation,  whose  debt 
originated  prior  to  the  Municipal  Corporation  Act,  is 
entitled  to  have  a  receiver  over  the  whole  corporate 
property  including  lands  that  may  have  been  acquired 
since  the  Act.(c/)1 

(b)  Whitworth  v.  Gaugain,  3  Re  Bishops  Waltham  Railway 
Ha.  425,  1  Ph.  735  ;  Abbott  v.  Co.,  lb.  2  Oh.  App.  382 ;  Re  Cow- 
Stratten,  3  J.  &  L.  603;  Ander-  bridge  Railway  Co.,  lb.  5  Eq. 
son  v.  Kemshead,  16  Beav.  339  ;  417. 

Ames  v.  Birkenhead  Docks,  20         (d)  Arnold  v.  Mayor,  §-c,  of 

Beav.  342  ;  Scott  v.  Hastings,  4  Gravesend,  2  K.  &  J.  574 ;  see 

K.  &  J.  633;  Kinderley  v.Jervis,  S.  C,  2  Jur.  N.  S.  706,  as  to  right 

22  Beav.  1 ;    Wickham  v.  New  of  mortgagee,  after  the  Corpo- 

Brunswick,   #•<;.,  Raihoay   Co.,  ration    Act,  against   a   receiver 

L.  R.  1  P.  C.  64.  appointed  at   suit  of  judgment 

(c)  See  Re  Hull  and  Hornsea  creditor  whose  debt  originated 
Railway  Co.,  L.  R.  2   Eq.  262  ;  before  the  act. 

1  Besides  the  cases  mentioned  in  the  text,  in  which  receivers  are 
appointed  at  the  instance  of  creditors,  the  statutes  of  many  States 
authorize  their  appointment,  under  certain  circumstances,  either  for 

5 


66  COMPANIES. 

SECTION  VI. — IN  THE  CASE  OF  PUBLIC  COMPANIES.1 

Receiver  of  Tolls,  &c,  Appointed  at  Suit  of  Mortgagee.— 
The  ground  on  which  the  Court  of  Chancery  will  not 
appoint  a  receiver  at  the  suit  of  a  mortgagee  of  real 
estate  who  has  the  legal  estate,  being  that  there  is 
open  to  him  a  full  and  perfect  remedy  at  law,(e)  the 
objection  to  the  appointment  of  a  receiver  is  removed 
in  cases  where  the  mortgagee  has  not  open  to  him  a 
remedy  at  law  by  ejectment.  Inasmuch,  therefore,  as 
the  mortgage  by  a  railway  or  canal  company  of  their 

(e)  Supra,  p.  38. 

the  purpose  of  reaching  and  guarding  the  debtor's  property  before 
judgment,  or  to  preserve  it  after  judgment,  or  to  carry  the  judgment 
into  effect.  Such  is  the  case  in  Ohio  (Seney's  Code,  Title  8,  Chap.  5), 
Indiana,  Kansas  (Gen.  Stats.  667),  Kentucky  (Myers's  Code  of  Prac- 
tice, 95  and  96),  California  (Wood's  Dig.  185),  and  New  York.  The 
cases  in  which  it  is  proper  to  appoint  these  receivers,  together  with 
their  powers,  duties,  and  responsibilities  when  appointed,  are  to  a 
great  extent  regulated  by  the  various  statutes,  the  provisions  of 
which  and  the  judicial  interpretations  whereof  it  would  be  impossible, 
even  if  it  were  desirable,  to  notice  here  in  detail.  Of  course  they 
throw  no  light  upon  the  subject  of  the  appointment  of  receivers  in 
ecpjity,  independently  of  legislation.  It  may  be  remarked,  however, 
that  the  practice  of  Courts  of  Chancery  has  been  generally  followed 
for  the  purpose  of  regulating  the  conduct  of  statutory  receivers  in 
those  cases  which  are  not  governed  by  express  legislative  provisions. 
In  Pennsylvania,  where  a  petitioner  for  the  benefit  of  the  Insolvent 
Act  has  been  bound  over  or  committed  for  trial  under  the  criminal 
provisions  of  the  Act,  a  receiver  may  be  appointed.  See  1  Purdon 
Dig.  784. 

1  If  the  governing  body  of  a  company  is  so  divided  that  it  cannot 
act  together,  the  court  will  grant  an  injunction  and  appoint  a 
receiver,  if  necessary,  until  a  meeting  is  held  by  the  company  and 
a  proper  governing  body  appointed.  Feather  stone  \.  Cooke;  Trade 
Auxiliary  Co.  v.  Vickcrs,  L.  It.  16  Eq.  298. 


COMPANIES.  67 

"  undertaking,"  or  the  rates,  tolls,  and  dues  arising 
therefrom,  does  not  give  the  mortgagee  such  an  in- 
terest as  will  enable  him  to  maintain  ejectment,(/)  he 
may  come  to  the  court  for  a  receiver.^)1 


(/)  Doe  v.  St.  Helen's,  fyc,  Eq.  534.     A  railway  mortgage 

Railway  Co.,  2  Q.  B.  364.  debenture  holder  is  entitled  to  a 

(g)  Fripp  v.  Chard  Raihvay  receiver  of  the  tolls  and  the  un- 

Co.,  11  Ha.  241 ;  Potts  v.  War-  dertaking,  and  not  merely  of  the 

wick  and  Birmingham  Canal  profits.    The   order  for   the  ap- 

Co.,  Kay,  146  ;  Ames  v.  Birken-  pointment  of  a    receiver  should 

head  Docks,  20Beav.  342 ;  Bowen  follow  the  terms  of  the  mortgage 

v.  Brecon  Raihvay  Co.,  L.  R.  3  deed  as  to  the  property  in  respect 

Eq.  541;   Gardner  v.  London,  of  which  the  appointment  is  made. 

Chatham  and    Dover  Raihvay  Griffin  v.  Bishops  Castle  Rail- 

Co.,  lb.  2  Ch.  App.  201 ;  Hopkins  way    Co.,  15  W.  R.  1058;    see 

v.  Worcester  and  Birmingham  Fripp  v.    Chard  Railway  Co., 

Raihvay  Co.,  lb.  6  Eq.  447  ;  see  11  Ha.  241,  Set.  on  Deer.  1034. 

Imperial  and  Mercantile  Credit  See  as  to  form  of  order,  Griffin  v. 

Association  v.  Neivry  and  Ar-  Bishops  Castle  Railway  Co.,  1& 

magh  Raihvay  Co.,  Ir.  L.  R.  2  L.  T.  N.  S.  345. 

1  Courts  of  Equity  in  this  country  have  exercised  the  jurisdiction 
of  chancery  in  the  appointment  of  receivers  of  public  companies.  In 
the  case  of  The  Covington  Drawbridge  Company  v.  Shepherd, 
21  Howard,  125,  it  was  decided  that  the  United  States  Courts  had 
power  to  appoint  a  receiver  of  the  tolls  of  a  drawbridge  company  at 
the  instance  of  an  execution  creditor  who  had  levied  upon  the  rents 
and  profits  of  the  bridge,  purchased  the  same  at  the  marshal's  sale, 
demanded  possession  of  the  bridge  for  the  purpose  of  collecting  the 
tolls,  and  had  been  refused.  The  like  power  was  exercised  in  The 
State  v.  The  Northern  Central  Raihvay  Co.,  18  Maryl.  193.  See 
also  Ogilvie  v.  The  Knox  Ins.  Co.,  22  Howard,  380  ;  and  White 
Water  Valley  Canal  Co.  v.  Vallette,  21  Howard,  414. 

In  Kennedy  v.  The  St.  Paul  §■  Pacific  R.  R.  Co.,  2  Dillon,  448, 
a  receiver  of  a  railroad  company  was  appointed  for  the  purpose  of 
preserving  a  valuable  land  grant  which  would  have  been  otherwise 
lost  to  the  corporation ;  and  to  that  end  the  receiver  was  authorized 
to  borrow  money  to  complete  the  unfinished  portions  of  the  road,  audi 


68  COMPANIES. 

So,  also,  and  upon  the  same  principle,  a  man  who 
has  sold  land  to  a  railway  company  in  consideration 
of  a  rent-charge,  may  come  to  the  court  for  a  re- 
ceiver.^) So,  also,  and  upon  the  same  principle,  a 
mortgagee  of  turnpike,(z)  dock,(j)  and  market(/^)  tolls 
has  a  right  to  come  to  the  court  to  have  a  receiver 
appointed. 

The  court  has  jurisdiction  to  appoint  a  receiver  at 
the  suit  of  a  mortgagee  of  tolls,  independently  of  any 
Act  of  Parliament.(7)  The  appointment  of  a  receiver 
at  the  suit  of  a  mortgagee  of  tolls  is  one  of  the  oldest 
remedies  of  the  court.(m)  It  is  not  necessary  that  the 
Act  should  give  the  court  power  to  appoint  a  receiver 
to  enable  the  court  to  do  so.  When  an  Act  of  Parlia- 
ment authorizes  a  mortgage,  it  authorizes,  as  incident 
to  it,  all  necessary  remedies  to  compel  payment,  and  in 
the  case  of  tolls  a  power  to  appoint  a  receiver.(?i) 

{h)  Eyton  v.    Denbigh,   fyc,  {k)  De    Winton  v.  Mayor  of 

Railway  Co.,  L.  R.  6  Eq.  14.  Brecon,  26  Beav.  533. 

(i)  Knapp  v.  Williams,  4  Ves.  [I)  lb. 

430  n.,  per  Lord  Loughborough  ;  (m)  Hopkins  v.  Worcester  and 

Lord  Crewe  v.  Edleston,  1  D  &  Birmingham  Canal  Co.,  L.  R.  6 

J.  109.  Eq.  447. 

(j)  Amesv.  Birkenhead  Docks,  (n)  De    Winton  v.  Mayor  of 

20  Beav.  342.  Brecon,  26  Beav.  541. 

to  issue  debentures  which  were  made  (by  the  terms  of  the  order)  a 
lien  on  the  corporate  property. 

Where  a  fund  belonging  to  a  foreign  corporation  is  deposited  with 
parties  within  the  jurisdiction,  a  receiver  of  that  fund  will  be  ap- 
pointed on  a  proper  case  being  made  out.  Redmond  v.  Hoge,  3 
Hun,  171. 

In  many  States  there  arc  statutory  provisions  authorizing  the 
appointment  of  receivers  of  public  companies,  under  certain  circum- 
stances, and  regulating  their  duties  and  authority.  Sec  infra,  page 
80,  note. 


COMPANIES.  G9 

The  fact  that  a  precise  and  specific  remedy  may  be 
pointed  out  by  the  Act  of  Incorporation,  which  pro- 
vides that  persons  aggrieved  by  any  order  of  the  man- 
agers of  the  corporate  body  may  appeal  to  the  quarter 
sessions,  does  not  deprive  a  party  of  his  right  to  a  re- 
ceiver ;  nor  does  a  proviso  in  the  Act  of  Incorporation, 
that  no  suit  should  be  commenced  against  any  person 
for  anything  done  in  pursuance  of  the  Act,  until  a 
certain  notice  had  been  given,  apply  to  a  suit  for  a  re- 
ceiver;^) nor  does  a  proviso  in  the  Act  of  Incorpora- 
tion of  a  railway  company,  that  a  committee  of  twelve 
of  the  proprietors  of  the  company  should  be  elected  at 
every  annual  meeting  to  manage  the  affairs  of  the 
company,  deprive  a  mortgagee  of  his  right  to  a  receiver 
of  the  rates,  tolls,  and  dues  of  the  company.(^)  Nor 
is  the  jurisdiction  to  appoint  a  receiver  at  the  suit  of  a 
mortgagee  taken  away  by  the  fact  that  there  is  a  pro- 
vision by  statute  for  the  appointment  of  a  receiver 
through  the  medium  of  two  justices  of  the  peace.(^) 
Nor  is  it  any  objection  to  the  appointment  of  a  re- 
ceiver, that  the  company  has  duties  to  perform,  the 
neglect  of  which  might  subject  them  to  indictment, 
for  the  order  of  the  court  always  gives  the  parties 
liberty  to  apply,  whereby  such  consequences  may  be 
averted.(r) 

(o)  Drewry  v.  Barnes,  3  Russ.  appointment  of  a  receiver  at  the 

104.  suit  of  mortgagees  by  two  justices 

(p)  Fripp  v.  Chard  Railway  of  the  peace.    A  provision  to  the 

Co.,  11  Ha.  241.  same  effect  is  contained  in  10  &  11 

(q)  lb.  259.     By   the    Lands  Vict.,  c.  16,  ss.  86,  87. 

Clauses  Act,  8  &  9  Vict.,  c.  26,  ss.  (r)   Fripp  v.  Chard  Railway 

53,  54,  provision  is  made  for  the  Co.,  11  Ha.  259. 


70  COMPANIES. 

Pleading.— A  mortgagee  of  the  tolls  of  a  company, 
seeking  to  obtain  the  appointment  of  a  receiver,  must 
sue  on  behalf  of  himself  and  all  other  mortgagees  who 
have  an  interest  identical  with  his  own,  or  are  in  the 
same  class  with  himself.(s)1  Where  such  a  suit  has 
been  instituted,  a  mortgagee  holding  a  mortgage  in 
the  statutory  form  of  a  debenture  of  the  company  is 
not  entitled  to  sue  out  execution  on  a  judgment  which 
he  has  obtained  at  law  in  an  action  on  the  same 
instrument,  except  as  a  trustee  for  himself  and  all 
other  debenture  holders  entitled  to  be  paid  pari  passu 
with  him;(Y)  and,  that  being  the  opinion  of  the  court, 
an  inquiry  was  directed  upon  the  petition  for  leave  to 
issue  execution,  and  in  the  suit  whether  it  would  be 
for  the  benefit  of  the  debenture  holders  that  any  pro- 
ceedings should  be  taken  by  the  receiver  for  the  pur- 
pose of  making  such  judgment  available  for  the  benefit 
of  such  creditors.(w) 

(s)  Potts  v.  Warivick  and  Bir-        [t)  Bowen  v.  Brecon  Railway 
mingham  Canal  Co.,  Kay,  142  ;     Co.,  L.  R.  3  Eq.  541. 
Fripp  v.  ChardRaihvay  Co.,  11         (u)  lb.  551. 
Ha.  241  ;  Legg  v.  Matthieson,  2 
Gin*.  71. 

1  In  Gravenstine'8  Appeal,  4!)  Penna.  St.  R.  310.  a  creditor  of  a 
corporation  filed  a  bill  to  restrain  another  creditor,  who  had  obtained 
judgment,  from  issuing  execution  and  levying  upon  the  corporate 
property.  The  court  below  granted  an  injunction  and  appointed  a 
receiver,  but  this  decree  was  reversed  by  the  Supreme  Court,  partly 
it  pon  the  ground  that  the  court  would  not  interfere  on  behalf  of  one 
creditor  to  restrain  another  from  obtaining  satisfaction  by  means  ofa 
prior  levy  upon  tin1  debtor's  goods,  ami  partly  also  because  the  corpo- 
ration was  mi!  made  a  parly  to  the  bill,  and  the  appointment  of  a  re- 
ceiver of  thecorporate  property  was  therefore  highly  irregular.  And 
Bee  Ellicott  v.  United  States  li<surttu<-r  Co.,  7  Gill,  307. 


COMPANIES.  71 

In  a  case  where  a  mortgagee  of  turnpike  tolls,  under 
an  Act  of  Parliament  which  provided  that  there  should 
be  no  priority  among  the  mortgagees,  took  possession 
on  not  being  paid,  and  retained  the  whole  proceeds 
in  discharge  of  his  own  demand,  a  receiver  was  ap- 
pointed.^) 

A  receiver  may  be  appointed  in  a  suit  instituted  by 
one  of  several  mortgagees  on  behalf  of  himself  and 
all  others,  though  the  others  do  not  concur  in  the  ap- 
plication.^) 

Provisions  inserted  in  the  Order.— The  court  will  not, 
at  the  suit  of  mortgagees,  sanction  the  appointment  of 
a  receiver  of  a  public  company,  established  by  the 
legislature  for  a  particular  object,  without  providing 
as  far  as  possible  for  the  future  working  and  continu- 
ance of  the  undertaking  sanctioned  by  the  legisla- 
ture.^) The  order  will  also  be  without  prejudice  to 
the  rights  of  prior  incumbrancers. 

Receiver  of  Chattels  of  a  Railway  Company.— The 
Court  of  Chancery  has,  even  after  a  receiver  of  the 
tolls  has  been  appointed,  appointed  a  receiver  of  the 
chattel  property  of  a  railway  company,  on  a  motion 
by  a  debenture  holder,  when  the  company  had  by  a 

(v)  Dumville  v.  Ashbrooke,  3  Co.,  Kay,  147  ;  Ames  v.  Birken- 

Euss.  99  n.  head  Docks,  20  Beav.  350  ;  see  as 

(x)  Fripp  v.  Chard  Railway  to  form  of  the  order,  Fripp  v. 

Co.,  11  Ha.  241.  Chard  Railway,  11  Ha.  265,  Set. 

(y)  Fripp  v.  Chard  Railway  on  Deer.  1034 ;  Potts  v.  Warioick 

Co.,  11  Ha.  265  ;  Potts  v.  War-  and    Birmingham   Canal    Co., 

wick  and   Birmingham  Canal  Kay,  143. 


72  COMPANIES. 

deed  assigned  their  rolling  stock  and  chattels  to  trus- 
tees for  the  general  benefit  of  creditors,^) 

Judgment  Creditor  of  a  Company  may  have  a  Receiver. 
— An  ordinary  judgment  creditor  of  a  railway  or  canal 
company,  suing  out  his  elegit  and  getting  extended 
under  it  the  land  traversed  by  the  railway,  has  a  right, 
as  between  himself  and  the  company,  to  go  into  pos- 
session of  the  land,  and,  not  interfering  with  the  work- 
ing of  the  canal  or  railway,  to  take  the  profits  realized 
by  its  use  in  the  only  way  in  which  the  responsibilities 
imposed  by  the  legislature  on  such  companies  for  the 
benefit  of  the  public  allow  them  to  use  it,  and  in  the 
assertion  of  that  right  to  have  the  protection  of  a  Court 
of  Equity,  by  the  appointment  of  a  receiver  of  the  tolls 
and  traffic  receipts.(a) 

Priorities  between  Mortgagee  and  Judgment  Creditor.— 
As  between  a  judgment  creditor  and  a  mortgagee  of 
the  undertaking,  who  had  obtained  his  mortgage  before 
the  recovery  of  the  judgment,  the  right  of  the  mort- 
gagee is  paramount.(^)  "When,  accordingly,  a  receiver 
has  been  appointed  at  the  instance  of  a  mortgagee,  his 
right  is  prior  to  the  claim  of  a  judgment  creditor  under 
an  elegit,  whose  whole  interest  in  the  land  can  be  that 

(z)     Waterloo  v.  Sharp,  2  W.  Mercantile    Credit  Association 

N.  64  ;  see  Rickman  v.  Johns,  L.  v.  Newry  and  Armagh  Railway 

It.  6  Eq.  488,  17  W.  R.  928.  Co.,  &c,  Ir.  I,.  R.  Eq.  531,  per 

(a)  Furnessv.Catcrham  Rail-  Christian,  L.  J. 

way  Co.,  25  ISeav.  014  ;  Potts  v.  (b)  Legg  v.  Matthieson,  2  Giff. 

Warwick      and     Birmingham  71;  Wildyv.  North  Hants  Rail- 

Canal  Co.,  Kay,  145;   Imperial  way  Co.,  .iVf.  N.  61;  supra,  p.  65. 


COMPANIES.  73 

only  which  subsists  subject  to  the  right  of  the  receiver 
and  the  provisions  of  the  railway  acts.  Notwith- 
standing that  a  receiver  may  have  been  appointed  at 
the  instance  of  a  mortgagee,  a  judgment  creditor  may 
also  have  a  receiver  appointed  ;  but  the  receiver  who 
has  been  appointed  at  the  instance  of  a  judgment 
creditor  takes  without  prejudice  to  the  right  of  a  re- 
ceiver appointed  at  the  instance  of  a  mortgagee.(e) 
The  fact  that  judgment  may  have  been  obtained  before 
the  appointment  of  a  receiver  at  the  instance  of  the 
mortgagee,  does  not  vary  the  rule.  If  the  mortgagee 
is  not  in  possession  by  his  receiver  at  the  time  when 
execution  is  issued,  the  judgment  creditor  may,  under 
the  provisions  of  the  Common  Law  Procedure  Act, 
take  the  rates  and  tolls  then  due ;  but  as  to  the  rates 
and  tolls  thereafter  to  become  due,  he  will  be  stopped 
at  any  time  by  the  mortgagee  entering  into  possession 
by  his  receiver.^) 

So  also  when  a  judgment  creditor  applied  for  a  re- 
ceiver against  a  company  which  had  concluded  an 
agreement  with  another  company  to  work  their  line, 


(c)  Potts  v.  Warwick  and  Bir-  the  judgment  creditor,  and  that 

mingham  Canal  Co.,  Kay,  145  ;  he  should  be  at  liberty,  though 

Ames  v.  Birkenhead  Docks,  20  not  a  party   to  the  cause,  to  ap- 

Beav.  332  ;  see  Hopkins  v.  Wor-  pear  at  the  hearing  of  the  motion, 

cester  and  Birmingham   Canal  or  to  give   such  notice  of  motion 

Co.,  L.  R.  6  Eq.  447.     In  a  case  to  discharge  or  vary  the  order  as 

where  a  judgment  creditor  under  he  may  be  advised.     DeWinton 

an  elegit  was  in  possession,  and  v.    Mayor,    fyc,   of  Brecon,  26 

a  receiver   was   afterwards    ap-  Beav.  539. 

pointed  at   the   suit  of  a   mort-  (d)  Amesy.  Birkenhead  Docks, 

gagee,  it  was  ordered  that  notice  20  Beav.  352. 
of  the  order  should  be  given  to 


74  COMPANIES. 

a   receiver  was   appointed  without  prejudice   to   the 
working  agreement.(e) 

In  determining  their  respective  rights  between  a 
mortgagee  of  a  railway,  canal,  or  other  undertaking 
and  a  judgment  creditor,  it  is  necessary  to  bear  in 
mind  that  the  effect  of  a  mortgage  of  the  undertaking 
and  tolls  is  to  carry  the  tolls,  the  unpaid  calls,  and 
probably  all  the  property  of  the  company,  as  proprie- 
tors of  the  undertaking,  which  any  one  is  at  liberty  to 
use  on  paying  toll,  but  not  the  stock  or  chattels  of  the 
company,  as  carriers  of  passengers  or  goods  for  hire,  or 
the  soil  of  the  undertaking  itself. (/)  A  mortgage  of  an 
undertaking,  within  the  terms  of  the  Companies  Clauses 
Act,  carries  only  the  tolls  and  sums  of  money  arising 
or  authorized  to  be  received  by  virtue  of  the  Act,  %.  e., 
the  profits  arising  from  the  use  of  the  undertaking  as 
a  going  concern. (g)  The  mortgage  of  an  undertaking 
does  not  carry  with  it  the  lands  of  the  company,  unless 
it  appear  from  the  deed  or  act  that  it  was  the  inten- 
tion of  the  parties  that  the  land  should  pass.  The 
mortgage  debentures  of  a  railway  or  other  company 
do  not  constitute  an  equitable  charge  on  the  lands  of 
the  company,  so  as  to  give  the  holders  a  right  to  re- 
strain the  sale  of  the  lands  by  judgment  creditors,  or 

(e)   Contract   Corporation   v.  em  Union  Raihvay  Co.  v.  Hart, 

Tottenham      and     Hampstead  8  Exch.  116. 

Junction  Railway  Co.,  2  W.  N.  (g)  Gardner  v.  London,  Chat- 

242.  h«m  and  Dover  Railway  Co., 

(/)   Hart  v.  Eastern   Union  L.  R.  2  Oh.  App.  201;  Bowen  v. 

Railway  Co.,  7  Exch.  205;  East-  Brecon  Raihvay  Co.,  L.  R.  3  Eq. 

548. 


COMPANIES.  75 

any  title  to  the  proceeds  of  the  land  when  sokl.(A) 
Where,  accordingly,  a  railway  company,  within  the 
term  of  the  Companies  Clauses  Act,  being  indebted  in 
a  sum  of  money  to  their  contractors  for  work  done, 
had  granted  to  them  as  a  security  for  the  debt  a  charge 
upon  their  surplus  land,  it  was  held  that  the  mort- 
gagees of  the  undertaking  had  no  charge  upon  such 
lands,  but  that  the  contractors  or  their  assignees  were 
entitled  to  have  a  receiver  appointed. (i)  So  also  it  was 
held  that  the  mortgagee  of  the  tolls  of  an  undertaking 
cannot  have  an  injunction  and  receiver  against  judg- 
ment creditors  who  are  about  to  take  under  an  elegit 
the  lands  of  the  company.(A-)  The  mortgage  of  a  rail- 
way undertaking  includes,  it  would  seem,  the  interest 
of  the  company  in  the  works,  rails,  and  fixtures,  as  in- 
cident to  the  working  of  the  railway.(J)  A  judgment 
creditor  has  been  restrained,  at  the  suit  of  a  mortgagee, 
from  taking  under  his  elegit  the  works,  rails,  &c.  &c, 
as  incident  to  the  working  of  the  railway.(ra) 

Right  of  Judgment  Creditor  to  the  Chattels  of  a  Com- 
pany.—Under  an  elegit  it  seems  that  the  chattels  and 
rolling  stock  of  a  railway  company  could,  in  cases  not 
coming  within  the  Railway  Companies  Act,  1867,  be 

(7i)  Wickham  v.  New  Bruns-  [1)  Legg  v.  Matthieson,  2  Giff. 

wick,  fyc,  Railway  Co.,  L.  R.  1  71 ;   see    Gardner   v.   London, 

P.  C.  64.  Chatham  and  Dover  Railway 

(*')  Gardner  v.  London,  Chat-  Co.,  L.  R.  2  Ch.  App.  201. 

ham  and  Dover  Railway  Co.,  (m)  Leggy.  Matthieson, 2  Giff. 

L.  R.  2  Ch.  App.  201.  71. 

(k)  Perkins  v.  Deptford  Pier 
Co.,  13  Sim.  277. 


76  COMPANIES. 

seized  by  the  judgment  creditor. (n)  But  now,  under 
the  4'th  section  of  the  Railway  Companies  Act,  1867, 
30  &  31  Vic,  c.  127,  the  plant  and  rolling  stock  of  a 
railway  company  may  not  he  taken  in  execution  be- 
fore the  first  day  of  September,  1870,(o)  where  the 
judgment  on  which  execution  issues  is  recovered  in 
an  action  on  a  contract  entered  into  after  the  passing 
of  the  Act,  or  in  an  action  not  on  a  contract  com- 
menced after  the  passing  of  the  Act ;  but  the  person 
who  has  recovered  any  such  judgment  may  obtain  the 
appointment  of  a  receiver,  and,  if  necessary,  of  a  man- 
ager of  the  undertaking  of  the  company,  on  applica- 
tion by  petition  in  a  summary  way  to  the  Court  of 
Chancery ;  and  all  money  received  by  such  receiver  or 
manager  shall,  after  due  provision  for  the  working- 
expenses  of  the  railway,  and  other  outgoings  in  re- 
spect of  the  undertaking,  be  applied  and  distributed 
under  the  direction  of  the  court  in  payment  of  the 
debts  of  the  company,  and  otherwise  according  to  the 
rights  and  priorities  of  the  persons  for  the  time  being 
interested  therein,  and  on  payment  of  the  amount  due 
to  every  such  judgment  creditor  as  aforesaid,  the  court 
may,  if  it  think  fit,  discharge  such  receiver  or  manager. 

Right  of  Judgment  Creditor  to  have  a  Sale.— The  ap- 
pointment of  a  receiver  is  the  only  remedy  open  to 
the  holders  of  mortgage  debentures  of  a  railway  ;  the 

(n)  Russell  v.  East  Anglian     L.  R.  :'-  I'm  548;  sec  Blachmore 
Railway  Co.,  ::  Mac.  &  <:.  L25;    v.  Votes,  Ik  2  Exch.  225. 
Bowen  v.  Brecon  Railway  Co.,       [o)  Sec  :w  <fc  32  Vict.,  c.  79. 


COMPANIES.  77 

right  to  foreclosure  or  sale  is  denied  to  them  ;(p)  but 
a  judgment  creditor  of  a  railway  company  may,  under 
the  provisions  of  27  &  28  Vict.,  c.  112,  s.  4,  have  an 
order  for  the  sale  of  the  railway.^) 

Statutory  Bondholder  as  Distinguished  from  a  Mort- 
gagee.—The  position  of  a  statutory  bond  or  debenture 
holder  of  a  company,  under  the  Companies  Clauses 
Act,  or  other  act,  must  be  carefully  distinguished  from 
the  position  of  a  mortgagee.  A  statutory  bond  or  de- 
benture holder  is  not  entitled  to  an  equitable  charge 
on  the  tolls  and  traffic  receipts  of  the  undertaking,  or 
to  have  a  receiver  appointed  over  such  tolls  and  re- 
ceipts, for  the  purpose  of  paying  his  claim. (r)1  In  Rus- 
sell v.  East  Anglian  Railway  Co.,(s)  where  a  receiver 
had  been  appointed  by  consent  at  the  suit  of  a  bond- 
holder of  a  railway  company,  Lord  Truro  held  that 
the  order  for  a  receiver  ought  not  to  have  been  made, 
and  permitted  the  execution  creditor  to  levy  under 
his  writ  of  ji.fa.  against  the  goods  of  the  company, 
notwithstanding  the  possession  of  the  receiver  ;(t)  and 
there  can  be  no  doubt  that  if  the  judgment  creditor 
had  in  that  case  asked  leave  to  issue  an  elegit  against 


{p)    Furness     v.    Caterham  L.  E.  2  Eq.  524;  see  Bowen  v. 

Railway  Co.,  25  Beav.  614.  Brecon  Raihoay   Co.,  L.    It.  3 

(q)  Supra,  p.  65.  Eq.  548,  per  Lord  Hatherley. 

(?•)  Imperial  Mercantile  Cre-  (s)  3  Mac.  &  G.  151. 
dit  Association  v.  Newry  and  (t)  See  Bowen  v.  Brecon  Rail- 
Armagh    Raihoay  Co.,  fyc,  Ir.  way,  L.  R.  3  Eq.  548. 

1  See  Preston  v.  Corporation  of  Great  Yarmouth,  L.  R.  7  Ch. 
App.  655. 


78  COMPANIES. 

the  land  of  the  railway,  as  well  as  aji.fa.,  the  reason- 
ing* on  which  he  was  held  entitled  to  the  one  would  as 
well  entitle  him  to  the  other,  (m) 

Receiver  Appointed  at  Suit  of  Statutory  Bondholder.— 
A  statutory  bond  or  debenture  holder  who  has  ob- 
tained judgment  and  execution  against  the  company, 
may,  on  behalf  of  himself  and  all  other  bondholders, 
file  a  bill  for  a  receiver  ;(V)  but  he  is  not  bound  to 
bring  a  suit  on  behalf  of  himself  and  all  the  others. 
A  statutory  bond  or  debenture  holder  who  has  re- 
covered judgment  and  execution  against  the  company, 
is  not  a  trustee  of  the  moneys  he  may  recover  under 
the  execution  for  himself  and  all  other  debenture 
holders.  If  he  gets  paid  under  his  execution  by  the 
company  before  any  of  the  other  bondholders  inter- 
vene or  come  into  competition  with  him,  he  may  keep 
what  he  has  got,  and  cannot  be  brought  back  again.(a:) 
The  proper  mode  of  giving  effect  to  the  non-priority 
clauses  between  bondholders  in  the  Companies  Clauses 
Act,  would  seem  to  be  to  let  it  operate  after  the  bond- 
holders come  into  competition  with  each  other,  but 
not  to  the  undoing  of  past  transactions.  The  priority 
spoken  of  in  the  44th  section  of  the  act  is  not  priority 
existing  by  the  bond,  but  priority  to  be  acquired  by 

(u)  Imperial  Mercantile  Cre-  Armagh  Railway,  fyc,  Ir.  L.  R. 

dit  Association  v.  Newry  and  2  Eq.  526,  per  Christian,  L.  J. 

Armagh  Railway,  Sfc,  Ir.  L.  R.  (x)  lb.  543  ;  see  Fountaine  v. 

'1  Eq.  539,  per  Christian,  L.  J.     .  Carmarthen  Railway  Co.,  L.  R. 

(v)  Imperial  Mercantile  Cre-  5  Eq.  324,  per  Lord  Hatherley. 
dit  Association  v.  Neiory  and 


COMPANIES.  79 

execution ;  priority  not  between  bonds  which  are  no 
charges  at  all,  but  between  executions.^) 

Before  a  statutory  bond  or  debenture  holder  can 
maintain  a  suit  in  equity  against  the  company,  he 
must  have  proceeded  at  law  to  the  extent  necessary  to 
give  him  a  complete  title.  Till  he  has  sued  out  the 
writ  oiji.fa.  or  elegit,  he  has  no  locus  standi  in  equity.(^) 

Under  Companies  Clauses  Act  Mortgagees  cannot  have 
Priority  as  against  each  other.— The  42d  section  of  the 
Companies  Clauses  Act  limits  and  diminishes  the  in- 
trinsic rights  of  mortgagees,  imposing  on  them  the 
principle  of  non-priority. (a)  After  a  bill  has  been 
filed  by  all  the  holders  of  mortgage  debentures,  and  a 
receiver  has  been  appointed,  a  single  mortgage  deben- 
ture holder,  who  has  recovered  judgment  against  the 
company  on  his  debenture,  is  not  entitled  to  sue 
out  execution  on  his  judgment  otherwise  than  as  a 
trustee  for  himself  and  the  other  mortgage  debenture 
holders.(6)  The  intent  of  the  Act  being  that  parity  of 
possession  shall  be  given  to  those  who  have  parity  of 
security,  a  mortgage  debenture  holder  is  not  entitled, 
as  soon  as  he  can  recover  judgment,  to  acquire  an  ad- 
vantage over  the  other  mortgage  debenture  holders.(c) 
In  a  case  where  a  receiver  had  been  appointed  in  a 
suit  instituted  on  behalf  of  all  the  mortgage  deben- 
ture holders  of  a  company,  and  judgment  was  after- 
wards recovered  against  the  company  by  one  of  the 

(3/)  Ir.  L.  E.  2  Eq.  543,  per  (b)  Bowen  v .  Brecon  Railway 
Christian,  L.  J.  Co.,  L.  R.  3  Eq.  541. 

(z)  lb.  542, per  Christian,  L.  J.         (c)  lb.  550. 

(a)  Ir.  L.  R.  2  Eq.  534,  per 
Christian,  L.  J. 


80  COMPANIES. 

mortgage  debenture  holders,  inquiry  was  directed 
whether  it  would  be  for  the  benefit  of  the  debenture 
holders  that  any  proceedings  should  be  taken  by  the 
receiver  for  the  purpose  of  making  the  judgment 
available  for  them.(d) 

Priority  of  Mortgagees  and  Bondholders  under  30  & 
31  Vict,  c.  127.— The  priority  of  mortgagees  and  bond 
and  debenture  stock  holders  of  a  railway  company 
against  the  company,  and  the  property  from  time  to 
time  of  the  company,  over  all  other  claims,  on  account 
of  any  debts  incurred  or  engagements  entered  into 
after  August,  1867,  has  been  declared  by  30  &  31 
Vict.,  c.  127,  s.  23  ;  which,  however,  provides  that  this 
priority  shall  not  affect  any  claim  against  the  company 
in  respect  of  any  rent-charge  granted  or  to  be  granted 
in  pursuance  of  the  Lands  Clauses  Consolidation  Acts, 
1845  and  1860  ;  or  in  respect  of  any  rent  or  sum  re- 
served by  or  payable  under  any  lease  granted  or  made 
to  the  company  by  any  person  in  pursuance  of  any  act 
relating  to  the  company,  which  is  entitled  to  rank  in 
priority  to,  or  pari  passu  with,  the  interest  on  the 
mortgages,  bonds,  or  debenture  stock.1 

{(I)  lb.  551. 

1  The  exact  grounds  of  the  jurisdiction  of  Courts  of  Equity  over 
corporations  arc,  perhaps,  rather  difficult  to  define.  It  has  been 
;i  question  which  has  boen  somewhat  discussed  and  as  to  which  there 
seems  u>  have  been  some  difference  of  opinion  whether  there  was  any 
general  equity  jurisdiction  over  corporations,  as  such,  or  whether  the 
jurisdiction  of  Courts  of  Chancery  attached  only  by  virtue  of  such 
recognized  heads  of  jurisdiction  as  trusts,  injunctions  and  the  like. 
This  question  was  elaborately  examined  by  Chancellor  Cent  in  Alt. 


BETWEEN   VENDOR   AND    PURCHASER.  81 


SECTION  VII. — IN  CASES  BETWEEN  VENDOR  AND  PURCHASER. 

The  court  will,  upon  a  proper  case  being  made  out, 
interfere  upon  motion  and  appoint  a  receiver,  in  cases 

Gen.  v.  Utica  Ins.  Co.,  2  Johns.  Ch.  371,  and  the  conclusion  reached 
that  in  the  absence  of  a  case  of  breach  of  trust  or  for  an  injunction, 
there  was  no  general  equity  jurisdiction  over  corporations.  See,  also, 
The  Att.  Gen.  v.  The  Bank  of  Niagara,  Hopkins  R.  354;  and 
Bangs  v.  Mcintosh,  23  Barb.  591.  On  the  other  hand,  in  Pennsyl- 
vania a  rather  more  extended  view  of  the  jurisdiction  of  Courts  of 
Equity  over  corporations  seems  to  be  entertained.  See  Common- 
wealth  v.  Bank  of  Pennsylvania,  3  Watts  &  Serg.  184-193 ;  -Bap- 
tist Church  v.  Scannel,  3  Grants'  Cases,  48 ;  Saion  v.  Gesser,  1 
Weekly  Notes,  55.  And  the  same  conclusion  seems  to  have  been 
reached  in  Wisconsin  ;  Adler  v.  Milwaukee  Patent  Brick  Manuf. 
Co.,  13  Wis.  57.  But  whatever  is  the  true  view,  one  thing  seems 
to  be  tolerably  well  settled,  that  (independently  of  statutory  juris- 
diction), a  court  will  not  entertain  a  bill  for  the  dissolution  of  a 
corporation  and  the  consequent  appointment  of  a  receiver.  See 
Waterbury  v.  Merchants'  Union  Express  Co.,  50  Barb.  157.  In 
other  words,  a  Court  of  Chancery  will  not  assume  jurisdiction  to 
appoint  a  receiver  merely  for  the  purpose  of  carrying  out  a  decree 
for  dissolution;  for  it  has  no  jurisdiction  to  decree  the  dissolution. 
Independently  of  statutory  enactments,  therefore,  Courts  of  Equity 
will  appoint  a  receiver  over  corporate  property  in  the  following 
cases : — 

1.  At  the  suit  of  mortgagees  or  of  bondholders  who  have  a  lien 
on  the  corporate  property.  The  appointment  of  receivers  in  such 
cases  is  very  frequent,  and  has  been,  most  generally,  exercised  in 
suits  to  foreclose  mortgages  of  railways.  To  such  actions,  the  general 
principles  as  to  the  appointment  of  receivers  at  the  suit  of  mort- 
gagees, already  stated  in  this  chapter,  are  applicable.  See  Keep  v. 
Michigan  Lake  Shore  R.  R.  Co.,  6  Chicago  Leg.  News,  101.  Also 
Milwaukee  Railroad  Co.  v.  Soutter,  2  Wallace,  501 ;  Pullan  v. 
Cincinnati  and  Chicago  R.  R.  Co.,  4  Bissell,  35 ;  Williamson  v. 
Neio  Albany,  Sfc,  R.  R.  Co.,  1  Bissell,  198 ;  State  of  Maryland 
v.  Northern  Central  R.  R.  Co.,  18  Maryl.  193;  Bill  v.  The  New 
Albany,  Sfc,  R.  R.  Co.,  2  Bissell,  390. 

2.  At  the  suit  of  creditors  who  have  obtained  judgment  which 
they  are  unable  to  collect  by  levy  under  a  common  law  execution. 

6 


82  BETWEEN   VENDOR 

between  vendor  and  purchaser.  In  a  case,  accordingly, 
where,  on  a  bill  impeaching  a  sale  of  land  on  the  ground 

This  is  simply  the  application  of  the  principles,  already  discussed  in 
this  chapter,  which  regulate  the  appointment  of  receivers  as  between 
debtor  and  creditor.  Adler  v.  Mihvaukee  Patent  Brick  Manvfac. 
Co.,  13  Wis.  57;  Covington  Drawbridge  Co.  v.  Shepherd,  21 
How.  112. 

3.  At  the  suit  of  any  one  (creditor  or  stockholder)  interested  in 
the  funds  of  a  moneyed  corporation,  where  there  is  a  breach  of  duty 
on  the  part  of  the  directors  and  a  loss  or  threatened  loss  of  funds ; 
Evans  v.  Coventry,  5  DeG.  M.  &  G.  911 ;  Eedmund  v.  Enfield 
Manufac.  Co.,  13  Abb.  Pr.  R.  (N.  S.),  332  ;  or  a  state  of  things  exists 
in  which  the  governing  body  are  so  divided  that  they  cannot  act 
together;  Featherstone  v.  Cooke,  L.  R.,  16  Eq.  301;  Trade  Aux- 
iliary Co.  v.  Vickers,  Id.  303 ;  or  where  a  corporation  has  prac- 
tically closed  its  business ;  Warren  v.  Fake,  49  How.  Pr.  R.  430. 
But  ordinarily  a  stockholder  cannot  have  a  receiver  upon  a  prelimi- 
nary application,  for  such  an  order  would  work  a  dissolution  of  the 
company.  The  question  was  considered  in  Howe  v.  Deuel,  43  Barb. 
507,  where  Ingraham,  P.  J.,  used  the  following  language:  "It  only 
remains  to  inquire  whether  the  court,  under  its  general  powers  as  a 
Court  of  Equity,  can  make  the  order  appealed  from.  .  .  .  That 
the  court  has  power  to  restrain  a  corporation,  or  its  trustees  or  direc- 
tors, by  injunction  from  doing  any  act  in  violation  of  its  charter  or 
in  misapplying  the  funds  of  the  corporation,  I  have  no  doubt;  but  it 
must  be  against  such  specific  acts,  and  not  to  enjoin  them  from  carry- 
ing on  the  legitimate  business  of  the  corporation.  Nor  can  I  doubt 
the  power  of  the  court,  in  like  manner,  to  restrain  trustees  or  directors 
from  fraudulent  dispositions  of  corporate  property  or  a  misapplication 
of  the  funds  (Eobinson  v.  Smith,  3  Paige,  222 ;  Munt  v.  The  Shreivs- 
bury  and  Chester  E.  E.  Co.,  3  Phig.  Law  and  Eq.  144).  Various 
cases  may  be  found  cited  in  Hoffman's  Pr.  Reps.  (pp.  267,  268)  to 
the  „«ame  effect.  But  I  have  been  unable  to  find  any  cases  where, 
except  in  regard  to  moneyed  corporations  or  insolvent  corporations,  a 
stockholder  may  have  a  receiver  appointed  on  a  preliminary  injunc- 
tion, with  authority  to  take  entire  possession  of  the  corporation  and 
thereby  work  its  dissolution.  It  is  said  in  this  case  the  plaintiff  asks 
for  such  dissolution.  This  is  so  in  the  complaint;  but  such  an  appli- 
cation can  only  be  made  by  the  Attorney  General  (Code,  \  430  ; 
Smith  v.  Metropolitan  Gas  Light  Co.,  12  How.  Pr.  Rep.  187);  or 
by  the  parties  specified  in  section  35  of  the  revised  statutes  above 


AND    PURCHASER.  83 

of  fraud,  and  alleging  gross  inadequacy  of  considera- 
tion and  undue  influence  taken  of  the  ignorance  of  the 

referred  to."     See  also  Gilman  v.  Green  Point  Sugar  Co.,  4  Lans. 
482  ;  and  Turgeau  v.  Brady,  24  Louisiana  Ann.  348. 

4.  Where  a  corporation  is  dissolved  and  has  no  officer  to  attend 
to  its  affairs.  The  cases  of  the  Accessory  Transit  Company  may  be 
usefully  referred  to  in  this  connection.  In  the  first  place,  it  was  held 
that  when  a  foreign  corporation  has  been  dissolved  by  a  decree  of 
a  foreign  government,  but  the  degree  of  dissolution  is  not  absolute, 
a  receiver  will  not  be  appointed.  And  even  if  such  a  decree  were 
unqualified,  and,  although  made  in  the  absence  of  the  corporate 
officers,  should  be  recognized  as  valid,  yet  if  by  its  terms  the  title  to 
the  corporate  property  passed  to  certain  commissioners,  a  stockholder,- 
having  thus  been  deprived  of  his  title,  has  no  standing  to  ask  for  a 
receiver.  Hamilton  v.  Transit  Co.,  26  Barb.  46.  But  a  receiver  of 
the  company  was  subsequently  appointed  at  the  suit  of  judgment 
creditors,  and  in  an  action  brought  by  him  against  the  president  of 
the  company  his  title  was  sustained;  Murray  v.  Yanderbilt,  39  Barb. 
140.  The  court  said  :  "  But  for  the  purpose  of  preserving  the  pro- 
perty for  the  benefit  of  creditors  or  stockholders,  I  think  a  Court  of 
Equity  has  ample  power  to  take  charge  of  it  and  appoint  a  receiver. 
This  undoubtedly  is  the  rule  in  regard  to  domestic  corporations,  in- 
dependent of  any  statutory  provisions."  Such  was  the  case  in  Law- 
rence v.  The  Greeniuich  Fire  Insurance  Co.,  1  Paige,  587.  There 
the  bill  alleged  that  the  corporation  was  dissolved,  and  had  no 
officers  to  attend  to  its  concerns.  The  chancellor  said  :  "  It  was  evi- 
dent there  was  no  person  authorized  to  take  charge  of,  or  to  conduct 
the  affairs  of  the  corporation.  Under  these  circumstances  it  was 
proper  to  appoint  a  receiver  to  take  charge  of  the  effects  of  the 
company  and  preserve  them  for  the  benefit  of  tbe  stockholders  gene- 
rally. The  amendment  of  the  244th  section  of  the  Code,  applying 
the  appointment  of  receivers  to  like  cases  of  foreign  corporations  with 
those' which  existed  in  the  case  of  other  corporations,  would  extend 
this  power  to  the  present  case,  if  any  doubt  existed  prior  thereto." 
It  seems  that  an  insolvent  corporation  cannot,  itself,  apply  for  the 
appointment  of  a  receiver;  Hugh  v.  McRae,  Chase's  Dec.  466. 

The  general  equity  jurisdiction,  indicated  above,  has  in  many 
States  been  extended  by  statute.  Such  is  the  case  in  New  Jersey 
— Nixon's  Dig.  406  and  539;  and  see  Parsons  v.  The  Manufac- 
turing Co.,  3  Green,  C.  R.  187  ;  Brundred  v.  The  Paterson  Ma- 
chine Co.,  3  Green,  C.  R.  294;  Oakley  v.  The  Bank,  1  Green,  C.  R. 


84  BETWEEN   VENDOR 

vendor,  the  court  was  of  opinion,  from  the  materials 
before  it,  that  it  was  hardly  possible  the  transaction 
could  stand  at  the  hearing,  a  receiver  was  appointed 
in  a  suit  instituted  against  the  devisees  of  the  party 

173  ;  Eager  v.  Stephens,  2  Halst.  C.  R.  374 ;  Receivers  v.  The  Pater- 
son  Gas  Light  Co.,  3  Zabriskie,  292  ;  Kelley  v.  Neshanic  Mining 
Co.,  3  Halst.  0.  R.  579;  Corrigan  v.  The  Trenton  Bel.  Falls  Co., 
Id.  489 ;  Nichols  v.  The  Perry  Patent  Arm  Co.,  3  Stock.  C.  R. 
126  ;  The  AmericanCo.  v.  The  Paterson  Co.,  7  C.  E.  Green,  72  ;  In 
re  Long  Branch  and  Sea  Shore  R.  R.  Co.,  9  C.  E.  Green,  398,  1] 
Id.  539  ;  and  Middleton  v.  N.  J.  West  Line  R.  R.  Co.,  10  Id.  306 ; 
New  York — Rev.  Stats,  vol.  iii.  p.  739  et  seq. ;  and  see  Galwey  v. 
The  United  States  Refining  Co.,  36  Barb.  256 ;  Bell  v.  Shibley,  33 
Barb.  614  ;  Belmont  v.  The  Erie  R.  R.  Co.,  52  Barb.  637  ;  Att.  Gen. 
v.  The  Bank  of  Columbia,  1  Paige  C.  R.  511 ;  Lawrence  v.  The 
Greenwich  Fire  Insurance  Co.,  1  Paige,  C.  R.  587  ;  Bank  Commis- 
sioners v.  The  Bank  of  Buffalo,  6  Paige,  C.  R.  497  ;  Morgan  v.  The 
Railroad  Co.,  10  Id.  290 ;  Ward  v.  The  Sea  Ins.  Co.,  7  Id.  294 ; 
and  Clinch  v.  The  Southside  Railroad  Co.,  1  Hun,  636  ;  Pennsyl- 
vania—Purdon  Dig.  120-122  ;  Id.  Supplement,  1980,  2026;  Maine- 
Rev.  Stats,  cb.  47,  \  61-86 ;  and  see  Hewitt  v.  Adams,  54  Maine 
206  ;  Ohio— Seney's  Code,  Title  8,  Ch.  5 ;  Saylor's  Stats.  269, 1304-5  ; 
Rhode  Island— Rev.  Stats.  299,  300,  309,  310;  Massachusetts— Gen. 
Stats.  388-389 ;  Vermont— Rev.  Stats.  383 ;  Michigan— Comp.  Laws, 
1296, 1301, 1302  ;  and  see  Fay  v.  The  Bank,  Harrington,  C.  R.  194; 
Minnesota— Stats.  335;  Alabama— Rev.  Code,??  730,  731,  1417- 
1439,  3441,  4422;  California— Civil  Procedure,  Chap.  V.;  Connecti- 
cut—Rev. Stats.  288,  293,  309,  458,  482.  The  Act  of  Congress,  also, 
creating  the  system  of  National  Banks,  provides  for  the  appointment 
of  receivers  of  these  institutions  by  the  controller  of  the  currency 
whenever  they  are  in  default  in  the  payment  of  their  notes  of  circu- 
lation.  Brightly'a  Dig.  1125.  The  decision  of  a  receiver  appointed 
under  this  Act,  upon  a  claim  against  the  bank,  is  not  conclusive; 
Bankof  Bethel  v.  Pahquioque  l'xnik,  U  Wall.  383,  S.  C.  36  Conn. 
325.  As  to  the  effect  of  appointing  a  receiver  under  the  act  of  Con- 
-sec  the  same  case,  and  also  National  Bank  v.  Colby,  21 
Wal.  609.  The  provisions  of  the  act  do  not  oust  the  jurisdiction  of 
the  courts  to  appoint  a  receiver  under  an  ordinary  creditor's  bill; 
Wright  v.  The  Merchants1  National  Bank,  3  Cent.  Law  J.  351. 


AND    PURCHASER.  85 

charged  with  fraud. (e)  So,  also,  where  it  appeared  that 
the  defendants  had  obtained  the  conveyance  of  the 
legal  estate  from  the  plaintiff  upon  a  strong  suspicion 
of  abused  confidence,  a  receiver  was  appointed. (/) 

In  George  v.  Evans  ^{g)  where  a  bill  was  filed  by  a 
cestui  que  trust  to  set  aside  a  purchase  by  a  trustee 
from  him,  the  motion  for  the  appointment  of  a  re- 
ceiver was  refused,  though  the  trustees  admitted  the 
purchase  of  the  trust  property ;  the  ground  of  the  de- 
cision being,  though  the  case  was  one  of  suspicion, 
that  the  court  could  not  interfere  till  the  purchase- 
deed  was  actually  set  aside,  no  clear  evidence  having 
been  given  to  show  that  the  property  was  likely  to 
perish  from  the  neglect  or  misconduct  of  the  defend- 
ant. 

If  a  fair  'prima  facie  case  for  the  specific  performance 
of  a  contract  be  made  to  appear,  the  court  may  inter- 
fere upon  motion  and  appoint  a  receiver.(A)  In  a  case, 
accordingly,  where  the  bill  alleged  that  the  defendant 
had  taken  possession,  that  he  was  insolvent,  and  had 
attempted  to  sell  and  convey  the  estate,  a  receiver  was 
appointed. (Z)1  So  also  where  an  agreement  was  entered 
into  by  the  defendant  for  the  sale  of  an  estate  to  A., 
the  purchase  to  be  completed  and  the  purchase-moneys 

(e)  Stilhvell  v.  Wilhins,  Jac.  (7i)    See    Kennedy  v.  Lee,    3 

282.  Mer.  448  ;  McCloud  v.  Phelps,  2 

(/)  Huguenin  v.  Basley,   13  Jur.  962. 

"Ves.  107.  (*)  Hall  v.  Jenkinson,  2  V.  & 

(flf)  4  Y.  &  C.  211.  B.  125. 

1  But  the  court  will  not  appoint  a  receiver,  solely  on  the  ground 
that  a  purchaser  is  insolvent.     Jordan  v.  Beal,  51  Georgia,  602. 


86         BETWEEN  VENDOR  AND  PURCHASER. 

to  be  paid  on  or  before  the  expiration  of  five  years, 
and  in  the  mean  time  interest  to  be  paid  half  yearly  by 
A.,  with  power  to  the  defendant  to  avoid  the  contract 
in  the  event  of  the  interest  being  in  arrear  for  twenty- 
one  days;  and  the  defendant  afterwards  virtually 
agreed  with  the  plaintiff,  who  had  advanced  moneys 
to  A.  to  enable  him  to  pay  arrears  of  interest,  to  ex- 
tend the  term  for  payment  of  the  half-}Tearly  interest, 
but  notwithstanding  the  agreement  re-entered  as  for  a 
forfeiture,  the  court,  upon  a  bill  for  a  specific  perform- 
ance, appointed  a  receiver.^:)  So  also  a  receiver  was 
appointed  on  motion  of  the  vendor,  pending  a  refer- 
ence to  the  Master  as  to  title  in  a  suit  for  the  specific 
performance  of  a  contract  for  the  sale  of  an  estate, 
which  consisted  of  buildings  and  offices,  on  which  it 
would  be  necessary  to  effect  insurances,  and  of  orna- 
mental grounds  which  required  considerable  expendi- 
ture and  attention. (I)  So  also  a  receiver  may  be 
appointed  against  a  purchaser  in  possession  who  deals 
with  the  land  in  a  manner  contrary  to  former  usage, 
or  to  the  usual  course  of  husbandry,  at  the  suit  of  the 
vendor  and  before  specific  performanee.(m)  So  also 
where,  pending  a  suit  instituted  by  a  married  woman 
against  her  husband,  praying  the  execution  of  a  post- 
nuptial settlement  and  lor  an  injunction  to  restrain 
him  from  selling  or  encumbering,  the  husband  sold 
the  estate,  comprised  in  the  settlement,  to  the  plain- 


(k)  Damson  v.  Votes,  l  Beav.        (to)  Osborne  v.  Harvey,  1  Y. 
301.  &  0.  0.  0.  L16. 

[I    Boehm  v.  Wood,2  J.  &  W. 

230. 


COVENANTOR  AND  COVENANTEE.  87 

tiffs,  for  valuable  consideration,  and  the  plaintiffs  there- 
upon filed  a  bill  alleging  that  the  settlement  was  void 
against  them  as  being  voluntary,  and  charging  that 
the  defendant  was  taking  advantage  of  the  legal  estate 
to  prevent  the  purchaser  proceeding  at  law,  and  pray- 
ing, amongst  other  things,  a  receiver,  the  court,  being 
satisfied,  upon  the  pleadings,  that  the  decree  would  be 
in  favor  of  the  plaintiffs,  and  that  the  contract  would 
be  enforced,  granted  the  motion  for  a  receiver.(n) 

In  a  case  where  a  purchaser  was  discharged  on  a 
report  that  a  good  title  could  not  be  made  out,  and 
there  was  no  fund  in  court  to  pay  him  his  interest  and 
costs,  a  receiver  was  appointed  over  the  lands,  with 
directions  to  apply  the  rents  in  discharge  of  his  in- 
terest and  costs.(o) 


SECTION  VIII. — IN  CASES  BETWEEN  COVENANTOR  AND 
COVENANTEE. 

The  court  will  interfere  in  cases  between  covenantor 
and  covenantee,  and  appoint  a  receiver,  where  a  fair 
prirnd  facie  case  is  made  out  for  the  specific  perform- 
ance of  the  covenant.  In  a  case,  for  instance,  where  a 
tenant  in  tail  in  remainder,  upon  an  advance  of  money 
to  him  by  the  plaintiff,  had  agreed  to  repay  it  after 
the  death  or  failure  of  issue  of  his  brother,  the  tenant 
in  tail  in  possession,  and  had  secured  the  money  by  a 
mortgage  of  the  estate,  and  covenanted  to  levy  a  fine 

(n)  Metcalfe  v.  Pulvertoft,  1  (o)  Hill  v.  Kirwan,  1  Hog. 
V.  &  B.  181.  175. 


88  COVENANTOR  AND  COVENANTEE. 

and  suffer  a  recovery  to  give  effect  to  the  mortgage, 
but  on  coming  into  possession  refused  to  perform  his 
covenant,  the  court,  on  bill  for  specific  performance, 
appointed  a  receiver  of  the  rents.(p)  So  also  where 
the  defendant,  on  an  advance  of  money  being  made  to 
him,  agreed  to  execute  a  mortgage  of  certain  lands, 
but  afterwards  refused  to  perform  his  agreement,  and 
there  was  an  arrear  of  interest  due  on  the  money 
advanced,  on  bill  for  specific  performance,  the  motion 
for  a  receiver  was  granted. (q)  So  also  where,  in  a  case 
which  took  place  between  the  years  1811  and  1817, 
when  the  incumbent  of  a  benefice  might  charge  his 
benefice,  an  incumbent  duly  charged  his  benefice  with 
an  annuity,  and  covenanted  that  if  he  should  after- 
wards be  preferred  to  any  other  benefice  he  would 
charge  the  same  with  an  annuity  to  the  same  amount; 
but  afterwards,  on  being  preferred  to  another  benefice, 
refused  to  fulfil  his  covenant,  the  court  held  that  the 
covenant  constituted  a  good  equitable  charge,  which 
attached  on  the  new  benefice,  and  granted  a  receiver.(r) 
The  court  will  interfere,  when  necessary,  to  prevent 
irreparable  mischief  from  breach  of  covenant,  although 
the  property  may  have  to  be  distributed  in  bankruptcy, 
and  though  the  Court  of  Bankruptcy  may  be  able  to 
give  the  same  relief.(s)  Where,  accordingly,  inspectors 
appointed  by  a  deed  of  inspectorship,  registered  under 
the  Bankruptcy  Act,   1861,  filed  a  bill  against  the 

(/>)  Free  v.  Hinde,  2  Sim.  7.  (r)  Metcalf  v.  Archbishop  of 

{<!)  Shakel  v.  Duke  of  Marl-     York,  C  Sim.  '225;  1  M.  &  C.  553. 

borough,  <i  Madd.  40^.  (.s)   lliches  v.  Owen,  L.   R.  3 

Oh.  App.  821. 


BETWEEN   TENANT   AND   REMAINDERMAN.  89 

debtor,  alleging  that  he  was  dealing  with  his  assets  in 
a  manner  contrary  to  the  covenants  of  the  deed,  that 
they  were  unable  to  prevent  his  proceedings,  and  that 
irreparable  mischief  would  result  from  them,  a  receiver 
was  appointed. (t) 


SECTION  IX. — BETWEEN  TENANT    FOR  LIFE  AND 
REMAINDERMAN. 

If  the  tenant  for  life  does  not  keep  down  the  in- 
terest of  mortises,  and  other  incumbrances  on  the 
estate,  the  remainderman  may  apply  to  have  a  receiver 
appointed,  with  power  to  keep  down  the  interest,  and 
remit  to  the  tenant  for  life  the  surplus  rents.^*)1 

Where  there  was  a  limitation  of  a  term  to  raise  por- 
tions for  younger  children,  and  afterwards  the  estate 
was  limited  to  A.  B.  for  life,  with  remainder  over,  and 
a  decree  had  been  made  to  sell  the  term  for  raising 
portions,  and  A.  B.,  the  tenant  for  life,  would  not 
produce  the  title  deeds,  so  that  it  was  impossible  to 
make  out  a  title,  and  proceed  to  a  sale,  an  order  was 
made  for  a  receiver  of  the  rents  and  profits  of  the 
estate,  (x) 


(t)  Riches  v.   Owen,  L.  R.,  3  566  ;  Poioys  v.  Blagrave,  Kay, 

Ch.  App.  821.  495  ;    Shore  v.  Shore,  4  Drew. 

(u)  1    Sch.    &   Lef.  407;    see  501. 

Gresley  v.  Adderley,  1  Sw.  579;  (x)  Brigstocke   v.    Mansel,  3 

Bertie  v.  Lord  Abingdon,  3  Mer.  Madd.  47. 

1  See    Owing's   Case,  1   Bland,  297  ;   Cairns  v.  Chabert,  3  Edw. 
C.  R.  312 ;  and  Rogers  v.  Ross,  4  John.  C.  R.  402. 


90  BETWEEN   PARTNERS. 

SECTION  X.— IN  PARTNERSHIP  CASES. 

Principles  on  which  a  Receiver  is  Appointed.— Where 
an  application  is  made  for  a  receiver  in  partnership 
cases,  the  court  is  always  placed  in  a  position  of  very 
great  difficulty  ;  on  the  one  hand,  if  it  grants  the 
motion,  the  effect  of  it  is  to  put  an  end  to  the  part- 
nership which  one  of  the  parties  claims  a  right  to  have 
continued  ;  and,  on  the  other  hand,  if  it  refuses  the 
motion,  it  leaves  the  defendant  at  liberty  to  go  on  with 
the  partnership  business  at  the  risk,  and  probably  at 
the  great  loss  and  prejudice,  of  the  dissenting  party. 
Between  these  difficulties  it  is  not  very  easy  to  select 
the  course  which  is  best  to  be  taken,  but  the  court  is 
under  the  necessity  of  adopting  some  mode  of  pro- 
ceeding to  protect,  according  to  the  best  view  it  can 
take  of  the  matter,  the  interests  of  both  parties.^/)1 

{y)  Madgwick  v.  Wimble,  6  see  Blakeney  v.  Dufaur,  15 
Beav.  500,  per  Lord  Laugdale;     Beav.  42. 

1  Two  rules  upon  the  subject  of  the  appointment  of  receivers  in 
cases  of  partnership  seem  to  be  established  by  the  authorities. 

First.  AVhere  a  bill  is  filed  seeking  a  dissolution  of  a  partnership, 
and  it  satisfactorily  appears  that  the  complainant  will  be  entitled  to 
a  decree  for  the  dissolution,  a  receiver  will  be  appointed  as  a  matter 
of  course,  the  obvious  reason  being  that  the  same  causes  which  would 
justify  a  decree  for  dissolution,  would  also  justify  the  appointment  of 
a  receiver.  Birdsall  v.  Colie,  2  Stockt.  C.  R.  65;  Seighortner  v. 
Wetssenborn,  5  0.  E.  Green,  177;  Strirov.  Wagner,  8  0. E.  Green, 
388;  Dunn  v.  McNaugM,  !58  Geo.  17!);  Kirby  v.  Ingersott,  Bar- 
rington,  0.  R.  172;  M<tr/<»  v.  Van  Schatck,  4  Paige,  C.  R.  479. 
Sec  however,  Moies  v.  O'Neill,  8  0.  E.  Green,  207. 

Second.  When  u  dissolution  has  already  taken  place,  a  Court  of 
Chancer;  will  not  appoint,  a  receiver,  or  lake  the  administration  of 
the  partnership  assets  out  of  the  bandBOf  the  party  otherwise  entitled 


BETWEEN    PARTNERS.  91 

In  granting  or  refusing  an  order  for  a  receiver  in 
partnership  cases,  the  court  does  not  act  on  the  same 
principles  on  which  it  grants  or  refuses  an  order  for 
an  injunction.  In  granting  a  receiver  of  a  partner- 
to  it,  unless  there  is  some  mismanagement  or  improper  conduct  on 
the  part  of  the  person  against  whom  the  relief  is  sought ;  the  ap- 
pointment of  a  receiver  after  dissolution  is  not  a  matter  of  course. 
Bird  sail  v.  Colie  (supra) ;  Walker  v.  House,  4  Maryl.  Ch.  Dec. 
45;  0' Bryan  v.  Gibbons,  2  Id.  9 ;  Terrell  v.  Goddard,  18  Georgia, 
664  ;  Wellman  v.  HarJcer,  3  Oregon,  253  ;  Tomlinson  v.  Ward,  2 
Conn.  396  ;  Harding  v.  Glover,  18  Yesey,  281.  In  Law  v.  Ford, 
2  Paige,  C.  R.  310,  however,  it  was  said  that  "  when  either  party 
had  a  right  to  dissolve  the  partnership  and  the  agreement  between, 
the  parties  made  no  provision  for  closing  up  the  concern,  it  was  of 
course  to  appoint  a  manager  or  receiver,  on  a  bill  filed  for  that  pur- 
pose, if  they  could  not  arrange  the  matter  between  themselves." 
And  in  Sloan  v.  Moore,  37  Penna.  St.  R.  217,  Strong,  J.,  said  that 
"  it  was  difficult  to  see  how  the  necessity  of  a  receiver  can  be  avoided 
on  the  dissolution  of  a  partnership  when  the  parties  cannot  agree  as 
to  the  disposition  of  the  joint  effects,  for  no  one  has  a  right  to  their 
possession  or  control  superior  to  the  other."  But  it  is  to  be  observed 
that  in  Law  v.  Ford  the  bill  was  filed  for  the  purpose  of  obtaining 
a  dissolution,  while  in  Moore  v.  Sloan  the  conduct  of  the  defendant 
was  unreasonable  and  improper,  and  the  receiver  was  granted  on  that 
ground  ;  and  the  court  say,  "  where  a  dissolution  is  intended  or  has 
already  taken  place,  a  court  of  equity  will  always  appoint  a  receiver, 
provided  there  be  some  breach  of  the  duty  of  a  partner  or  of  the 
contract  of  partnership."  These  decisions,  therefore,  when  properly 
considered,  are  not  in  conflict  with  Birdsall  v.  Colie  and  the  other 
authorities  cited  above  ;  and  even  if  a  conflict  of  authority  on  this 
point  is  supposed  to  exist,  "  it  can  produce  but  little  embarrassment, 
because  an  application  for  a  receiver  by  either  party  will  rarely  be 
made  unless  a  breach  of  partnership  duty  exists  ;"  per  King,  Presi- 
dent, in  G oio an  v.  Jeffries,  2  Ashmead,  304.  See  also,  upon  this 
subject,  Cox  v.  Peters,  2  Beas.  39  ;  Holden's  Administrator  v. 
McMakin,  1  Pars.  Sel.  Eq.  Cas.  270  ;  Speights  v.  Peters,  9  Gill, 
472  ;  Waring  v.  Robinson,  Hoffman,  C.  R.  524 ;  and  Goiuan  v. 
Jeffries  (supra).  In  this  last  case  the  principles  which  govern  the 
court  in  the  appointment  of  a  receiver  are  admirably  stated  by  Presi- 
dent King. 


92  BETWEEN    PARTNERS. 

ship,  the  court  takes  the  affairs  of  the  partnership  out 
of  the  hands  of  all  the  partners,  and  entrusts  them  to 
a  receiver  or  manager  of  its  own  appointment.  In 
granting  an  injunction,  the  court  does  not  take  the 
affairs  of  the  partnership  into  its  own  hands,  but  only 
restrains  one  or  more  of  the  partners  from  doing  what 
may  he  complained  of.  The  order  for  a  receiver  ex- 
cludes all  the  partners  from  taking  any  part  in  the 
management  of  the  concern  ;  the  order  for  an  injunc- 
tion merely  restrains  one  of  the  partners  who  may 
have  acted  in  breach  of  the  partnership  articles, 
or  may  have  otherwise  misconducted  himself,  from 
continuing  to  act  in  the  way  complained  of.(z)  It 
therefore  does  not  follow  that  because  the  court  will 
grant  an  injunction,  it  will  also  appoint  a  receiver,  or 
that  because  it  refuses  to  appoint  a  receiver,  it  will 
also  decline  to  interfere  by  an  injunction.(a)1  In  every 
case  where  complaints  are  made  of  breaches  of  articles, 
it  must  be  seen  whether  they  are  urged  with  a  view  of 
making  them  the  foundation  of  a  dissolution,  or  of  a 
decree  enforcing  and  carrying  on  the  partnership, 
according  to  the  original   terms,  and  preventing,  by 

(z)  See  JTall  v.  Ball,  3  Mac.  k  12  Beav.  414,  ?>  Mae.  k  G.  79, 

0.  86.  where    although     an    injunction 

(a)   See    Read  v.  Bowers,  4  was  granted,  a  receiver  was  re- 

Bro.  0.0.441;  Bartz  v.  Schra-  fused. 
der,  B  Ves.  317;   Ball  v.   Ball, 

•  Roc  Oarretton  v.  Weaver,  3  Edw.  0.  It.  385;  also  Low  v. 
Bolmes,  2  0.  E,  Green,  L48,  where  a  receiver  was  refused,  bul 
security  was  required  to  be  given,  with  a  proviso  thai  in  default  of 
giving  the  security,  a  receiver  would  be  appointed. 


BETWEEN    PARTNERS.  93 

proper  means,  those  breaches  recurring  which  have 
before  happened  by  reason  of  the  conduct  of  the 
parties.(6) 

Receiver  not  Appointed  unless  a  Dissolution  be  sought. 
— It  is  not  according  to  the  practice  of  the  court,  where 
it  is  not  the  object  of  the  suit  to  obtain  a  dissolution 
of  a  partnership,  but,  on  the  contrary,  to  continue  the 
partnership,  to  grant  in  the  course  of  that  suit  the 
appointment  of  a  receiver  and  manager.(c)  The  court 
does  not  interfere  for  the  management  of  a  partner- 
ship, except  as  incidental  to  the  object  of  the  suit,  to 
wind  up  the  concern  and  divide  the  assets.(^)  If  the 
court  were  not  to  adopt  such  a  rule,  it  might  be  called 
upon  to  make  itself  the  manager  of  every  trade  in  the 
kingdom.(e) 

Cases,  however,  may  arise  in  which  a  partner  was  so 
conducting  himself,  that,  unless  a  manager  was  ap- 
pointed before  the  hearing,  the  partnership  concern 
might  in  the  mean  time  be  destroyed.  In  such  case 
the  court  would  appoint  an  interim  receiver  and  man- 
ager^/) A  receiver  would  also,  there  is  no  reason  to 
doubt,  be  appointed,  although  the  dissolution  of  the 
partnership  were  not  sought,  in  a  case  where  the  ques- 
tion was  one  of  the  receipt  of  money  only,  where, 


(6)  Hall  v.  Hall,  3  Mac.  &  G.  (d)  Waters  v.  Taylor,  15  Yes. 

86  ;  see  Goodman  v.  Whitcomb,  13. 

1  J.  &  W.  593.  (e)   Goodman  v.  Whitcomb,  1 

(c)   Goodman  v.  Whitcomb,  1  J.  &  W.  592  ;  Roberts  v.  Eber- 

J.   &  W.  589 ;    Hall  v.  Hall,  3  hardt,  Kay,  148. 

Mac.  &  G.  79  ;  Roberts  v.  Eber-  (/)  Hall  v.  Hall,  3  Mac.  &  G. 

hardt,  Kay,  148.  91. 


94  BETWEEN   PARTNERS. 

if  the  money  were  allowed  to  be  received  by  the  par- 
ties, it  wrould  not  be  applied  to  its  proper  purposes, 
and  thus  at  the  hearing  there  would  be  a  failure  of 
justice,  unless  the  court  interposed  in  the  mean  time.Q/) 
In  Const  v.  Harris,(h)  Lord  Eldon  said  that  a  re- 
ceiver might  be  appointed  in  a  suit  where  a  decree 
could  be  made  for  carrying  on  the  concern  according 
to  the  terms  of  some  specific  instrument,  which  by  the 
agreement  of  the  parties  was  to  regulate  the  mode  of 
its  being  carried  on,  as  well  as  in  a  suit  for  wholly 
putting  an  end  to  the  concern  ;  and  a  receiver  was  ap- 
pointed in  that  case,  although  a  dissolution  was  not 
sought  by  the  bill.  The  case  itself  was  a  peculiar  one. 
The  proprietors  of  a  theatre  had  executed  a  deed  by 
which  they  covenanted  and  agreed  that  the  profits  of 
the  theatre  should  be  exclusively  appropriated  to  par- 
ticular purposes,  and  that  the  treasurer  for  the  time 
being  should  be  irrevocably  directed  so  to  apply  the 
profits.  Some  years  afterwards  the  parties  entitled  to 
seven-eighths  of  the  theatre  entered  into  an  agreement 
which  provided  in  some  respects  for  a  different  appli- 
cation of  the  profits,  and  otherwise  affecting  the  rights 
of  a  party  interested  in  the  remaining  one-eighth,  who 
■was  not  consulted  on  the  subject,  and  upon  tin;  appli- 
cation of  that  part}'  for  the  specific  performance  of 
the  covenants  and  agreements  of  the  original  deed,  a 
receiver  was  appointed.  The  receiver  was  a  receiver 
wholly  unconnected  with  the  management.     Hisoffice 


{g)  Hall  v.  l/nii.  ::  Mac.  &  G.       (/■)  T.  ft  R.  517. 

90. 


BETWEEN   PARTNERS.  95 

was  purely  a  ministerial  one.  He  was  to  receive  alj 
that  persons  paid  for  their  entrance  to  the  theatre, 
and  to  apply  it  according  to  certain  terms  and  pro- 
visions which  the  parties  themselves  had  agreed  on.(i) 

It  is  not  necessary  that  the  Bill  should  Pray  a  Dissolu- 
tion.—It  is  not  necessary,  in  order  to  induce  the  court 
to  appoint  a  receiver,  that  the  bill  should  expressly 
pray  for  a  dissolution.  It  is  enough  that  it  be  plain 
that  it  is  necessary  to  put  an  end  to  the  eoncern.(/fc) 
If  such  be  the  case,  the  case  stands  upon  precisely  the 
same  basis  as  if  the  bill  had  been  filed  exclusively  for 
the  purpose  of  the  dissolution  and  the  winding  up  of 
the  concern.(7)  The  court  will,  in  all  cases,  entertain 
an  application  for  a  receiver,  if  the  object  of  the  suit 
is  to  wind  up  the  partnership  affairs,  and  the  appoint- 
ment of  a  receiver  is  sought  with  that  view.1  Thus 
in  Sheppard  v.  Oxenford(m)  a  bill  was  filed  on  behalf 
of  himself  and  other  shareholders,  by  a  shareholder 
in  the  National  Brazilian  Mining  Company,  against 
the  defendant,  its  sole  director  and  manager,  praying 
for  an  account  of  moneys  received  and  paid  by  the 
directors  on  behalf  of  the  association,  and  of  its  debts 
and  the  payment  thereof  out  of  the  assets  of  the-com- 
pany,  and  for  a  division  of  profits  among  the  share- 

(t)  See  Hall  v.  Hall,  3  Mac.  {I)  Hall  v.  Hall,  3  Mac.  &  G. 

&  G.  90.  89. 

(£)  Wallworth  v.  Holt,  4  M.  &  (m)  1  K.  &  J.  491. 
C.  619. 

1  See  Iowa  Code,  Sect.  1656 ;  also  Saylor  v.  Mockbie,  9  Withrow 
(Iowa),  209  ;  Hubbard  v.  Curtis,  8  Clark  (Iowa),  1. 


96  BETWEEN   PARTNERS. 

holders.  The  bill  also  prayed  for  an  injunction  to 
restrain  the  defendant  from  selling  the  property,  aud 
for  a  receiver  to  get  in  the  debts  owing  to  the  company, 
and  all  remittances  made  to  it  from  abroad,  and  gene- 
rally to  conduct  the  business  and  affairs  of  the  associa- 
tion, until  the  accounts  should  be  taken.  JSTo  dissolu- 
tion was  expressly  asked  for,  but  the  whole  object  of 
the  suit  evidently  was  to  wind  up  the  company,  and 
have  its  assets  applied  in  liquidation  of  its  liabilities  ; 
and  on  a  motion  by  the  plaintiff  for  an  injunction  and 
a  receiver,  an  injunction  was  granted,  and  a  receiver 
and  manager  was  appointed  as  prayed  by  the  bill. 
The  defendant,  who  had  gone  out  to  the  Brazils  after 
the  bill  had  been  filed,  was  appointed  receiver  and 
manager  out  there.(n) 

Again,  in  Evans  v.  Coventry, (6)  the  members  of  two 
societies,  or  rather,  it  would  seem,  of  one  society 
having  two  branches  of  business,  viz.,  a  loan  branch 
and  an  insurance  branch,  filed  a  bill  for  the  purpose  of 
having  the  funds  of  the  societies  made  good  by  the 
defaulting  directors,  and  of  having  the  accounts  in- 
vestigated, the  affairs  of  the  societies  wound  up,  if 
necessary,  and  their  assets  in  the  mean  time  protected 
by  the  appointment  of  a  manager  and  a  receiver.  It 
was  proved  that  some  of  the  funds  had  already  been 
made  away  with  by  the  secretary  ;  and  a  manager  and 
receiver  was  appointed  to  protect  what  remained  until 
the  hearing  of  the  cause,  upon  the  ground  that  the 

(n)  lb.  .001.  (o)  5   D.  M.  X-  (i.  911,  revers- 

ing 3  Drew.  75. 


BETWEEN   PARTNERS.  97 

plaintiffs  had  an  interest  in  the  funds  in  question,  and 
that  the  funds  were  in  danger  of  being  lost.  It  does 
not  appear  very  distinctly  what  the  manager  as  dis- 
tinct from  the  receiver  was  expected  to  do.  The  Vice- 
Chancellor  refused  the  motion,  mainly  on  the  ground 
that  he  could  not  take  upon  himself  the  management 
of  such  societies  even  until  the  hearing  of  the  cause. 
The  Court  of  Appeal  did  not  allude  to  this. 

The  mere  Fact  that  the  Bill  may  Pray  a  Dissolution  is 
not  enough  unless  there  be  a  Case  for  Dissolution.— The 
mere  fact  that  the  bill  may  pray  a  dissolution  is  not  a 
sufficient  ground  for  the  appointment  of  a  receiver 
unless  a  state  of  facts  is  shown  upon  the  bill  as  will,  if 
proved  at  the  hearing,  entitle  the  plaintiff  to  a  decree 
for  dissolution.^;)1  The  court  will  not  upon  motion 
appoint  a  receiver,  unless  it  sees  that  there  is  an  actual 
present  dissolution  arising  from  the  acts  of  the  parties, 

(p)  Goodman  v.  Whitcomb,  1  Beav.  503 ;  Roberts  v.  Eberliardt, 
J.  &  W.  589  ;  Smith  v.  Jeyes,  4     Kay,  148. 

1  Even  when  a  dissolution  is  contemplated  by  the  decree,  and  there 
is  a  disagreement  ainoug  the  partners,  it  is  not  in  all  cases  proper  to 
appoint  a  receiver.  In  Slemmer's  Appeal,  58  Penna.  St.  R.  168, 
the  court  directed  that  the  assets  of  the  firm  should  be  transferred 
to  that  one  or  more  of  the  partners  who  should  pay  or  secure  to 
be  paid,  within  a  reasonable  time,  the  highest  price  for  the  same, 
and  that  upon  such  assignment  and  transfer  the  partnership  should 
be  dissolved.  "  Where  a  valuable  business,"  said  Sharswood,  J., 
"  has  grown  up  by  the  joint  labors  and  contributions  of  all,  the 
court  should  be  careful  to  preserve  it  if  possible,  and  to  put  all  the 
parties  upon  a  fair  and  equal  footing  in  competing  for  it.  To  appoint 
a  receiver,  to  direct  a  sale  of  the  whole,  and  a  winding  up  of  the 
business,  would  destroy  its  value  without  benefiting  either  party." 

7 


98  BETWEEN   PARTNERS. 

or  that  at  the  hearing  it  will  dissolve  the  partnership. 
If  there  has  been  no  misconduct,  or  no  such  violation 
of  the  articles  as  to  entitle  the  plaintiff  to  a  dissolu- 
tion, a  receiver  will  not  be  appointed. (g)  If,  however, 
the  court  sees  its  way  to  a  dissolution  at  the  hearing, 
there  is  a  case  for  a  receiver.(r)1 

If  the  case  made  stands  in  such  a  state  that  the 
court  cannot  see  whether  or  not  there  shall  be  a  decree 
for  dissolution  at  the  hearing,  it  will  not  take  into  its 
own  hands  the  conduct  of  a  partnership  which  only 
may  be  dissolved. (s) 

If  the  partnership  is  a  continuing  one  and  may  con- 
tinue, a  receiver  will  not  be  appointed.  If  partners 
agree  upon  a  term  for  the  partnership  to  continue, 
neither  partner  can  dissolve  the  partnership  until  the 
end  of  the  term.  But  if  there  be  misconduct,  the 
court  can  and  will  before  the  term  expires  appoint  a 
receiver,  and  will,  though  disinclined  to  such  orders, 
appoint  a  receiver  on  interlocutory  application.  But 
the  case  then  to  be  made  must  not  be  one  raising 
merely  a  question  whether  there  is  or  is  not  miscon- 
duct as  between  the  partners.  The  court  must,  espe- 
cially if  there  be  no  term,  see  its  way  to  a  dissolution 
at  the  hearing.(J)     The  question  whether  there  is  or  is 

(7)  Baxter  v.  West,  28  L.  J.  (0  Baxter  v.  West,  28  L.  J. 

Ch.  L69.  Oh.  1C9;  see  Waters  v.  Taylor, 

(r)  Marsdenv.  Kaye, 30 L.T.  L5  Ves.  25;  Baily  v.  Ford,  L3 

197.  Sim.   495;     12    L.   J.   Ch.   482; 

(s)  Goodman  v.  Whitcomb,  1  Bmoker  v.  Henry,  6  L.  T.  N.  S. 

J.  &  W.  592.  43. 


Oowan  v.  Jeffries,  2  Ashmead,  296. 


BETWEEN   PARTNERS.  99 

not  a  term,  is  one  proper  at  the  hearing,  and  is  not  one 
that  the  court  will  try  on  an  interlocutory  application. 
If  there  is  not  sufficient  to  enable  the  court  upon  the 
interlocutory  application  to  say  that  at  the  hearing  it 
will  appear  there  was  a  term,  a  receiver  will  not  be 
appointecl.(w) 

Receiver  not  Ordered  in  every  Case  where  a  Case  for 
Dissolution  is  made. — The  court  will  not,  as  a  matter  of 
course,  appoint  a  receiver  of  the  partnership  assets, 
even  where  a  case  for  dissolution  is  made.(a:)  The 
very  basis  of  a  partnership  contract  being  the  mutual 
confidence  reposed  in  each  other  by  the  parties,(?/)  the 
court  will  not  appoint  a  receiver  in  a  suit  between 
members  of  the  partnership  firm,  unless  some  special 
ground  for  its  interference  be  established.^)1  It  must 
appear  that  the  member  of  the  firm  against  whom  the 
appointment  of  a  receiver  is  sought  has  done  acts- 
which  are  inconsistent  with  the  duty  of  a  partner,  and 
are  of  a  nature  to  destroy  the  mutual  confidence  which 
ought  to  subsist  between  the  parties.(a)2 

(u)  Baxter  v.  West,  28  L.  J.  Bro.  C.  C.  272 ;  see  Peacock  v. 

Ch.  169  ;  see  S.  C.  at  the  hearing,  Peacock,  16  Yes.  51. 

1  Dr.  &  Sni.  175 ;  Bowker  v.  (z)  Harding  v.  Glover,  18 
Henry,  6  L.  T.  N.  S.  43.  Yes.  281. 

(x)    Harding    v.    Glover,    18  (a)  Smith  v.   Jeyes,  4  Beav. 

Yes.  281  ;  Fairburn  v.  Pearson,  505  ;  see  Peacock  v.  Peacock,  16 

2  Mac.  &  G.  145.  Yes.  51 ;   Chapman  v.  Beach,  1 
(y)  Philipps   v.    Atkinson,  2  J  &.  W.  594  n. 

1  See  Terrell  v.  Goddard,  18  Georgia,  664,  where  a  receiver  was 
refused  ;  as  also  in  Parkhurst  v.  Muir,  3  Halsted,  C.  R.  307;  Tom- 
linson  v.  Ward,  2  Conn.  396;  and  Slemmer's  Appeal,  ante,  p.  97. 

1  The  doctrine  on  this  subject  is  well  illustrated  by  the  case  of 
Williamson  v.  Wilson,  1  Bland,  418,  and  the  law  well  stated  by  the 


100  BETWEEN   PARTNERS. 

Death  or  Bankruptcy  of  one  Member  of  a  Firm  not  a 
Ground  for  a  Receiver.— The  death  or  bankruptcy  of 
one  of  the  members  of  a  firm  is  not  of  itself  a  ground 
for  the  appointment  of  a  receiver  as  against  the  sur- 
viving or  solvent  partner  or  partners.  The  mutual 
confidence  which  the  members  of  the  firm  reposed  in 
each  other  at  the  date  of  the  contract,  and  which 
formed  the  very  basis  of  the  partnership  contract,  is 
not  as  regards  the  surviving  or  solvent  partner  or  part- 
Chancellor  (p.  426),  in  commenting  upon  the  facts  of  that  case. 
"  These  parties,"  he  says,  "  admit  themselves  to  be  insolvent  debtors. 
The  plaintiff  charges  his  copartners,  the  defendants,  with  a  design  to 
waste  the  joint  property  and  apply  it  to  their  own  use.  The  defend- 
ants deny  these  allegations,  and  charge  the  plaintiff  with  a  design 
to  misapply  the  funds,  and  to  give  some  of  the  creditors  an  undue 
preference.  Taking  the  charges  of  the  plaintiff  and  of  the  defend- 
ants, or  of  either  party,  to  be  true,  or  allow  that  each  or  either  party 
was  about  to  waste  the  property,  or  has  his  favorite  creditors  to 
whom  it  is  his  design  to  give  an  undue  preference,  and  it  is  clear 
that  one  or  the  other  or  both  of  them  have  formed  a  fixed  resolution 
to  violate  one  of  the  great  principles  of  equity,  which  it  is  the 
peculiar  province  of  this  court  to  prevent.  None  of  the  creditors 
of  these  insolvent  debtors,  so  far  as  it  appears,  have  as  yet  obtained 
any  legal  advantage.  It  is  proper,  therefore,  that  this  court  should 
now  lay  its  hands  upon  the  joint  property  of  this  partnership,  and 
let  all  its  creditors  come  in  pari  i^assu,  and  according  as  their 
respective  priorities,  if  any,  should  appear.  Both  parties  profess  to 
have  had  this  equitable  distribution  in  contemplation  ;  both  acknow- 
ledge themselves  to  be  in  that  insolvent  condition,  in  which  the 
making  of  such  an  equitable  distribution  has  devolved  upon  them 
as  a  duty.  And  each  charges  the  other  with  having  made  an  effort 
and  formed  a  fixed  design  to  disregard  this  duty.  Neither  of  them 
seems  to  have  the  least  confidence  in  the  other.  Under  all  these 
circumstances,  1  consider  this  as  a  case  in  which  if  is  peculiarly  fit 
and  proper  that  a  receiver  should  have  been  appointed  before 
answer,  :ind  should  now  be  continued  as  a  means  of  winding  up  the 
affairs  of  this  partnership  in  safety,  and  with  justice  and  equality  to 
all  concerned."     Sec  also  Randall  v.  Mm-rrll,  2  0.  E.  Green,  346. 


BETWEEN   PARTNERS.  101 

ners  affected  by  the  death  or  insolvency  of  one  of  the 
members  of  the  firm. (7/)  If  a  partner  dies,(c)  or  be- 
comes bankrupt,(c/)  a  right  to  wind  up  the  partnership 
concern  and  collect  the  assets  is  by  law  vested  in  the 
surviving(V)  or  solvent(/)  partner  or  partners,  as  the 
case  may  be.  Before  the  court  will  interfere  and  ap- 
point a  receiver,  some  breach  or  neglect  of  duty  on 
their  part  must  be  established. [g)x 

The  reasoning  on  which  the  court  proceeds  in  refus- 
ing to  appoint  a  receiver  at  the  suit  of  one  member  of 
a  firm  against  another,  does  not  apply  to  the  case  of 
persons  who  acquire  an  interest  in  the  partnership 
assets  by  events  over  which  the  parties  have  no  con- 


(6)  See  Philipps  v.  Atkinson,  Sra.  &  G.  487;  Fraser  v.  Ker- 

2  Bro.  C.  C.  272.  shaw,  2  K.  &  J.  499. 

(c)  Collins  v.  Young,  1  Macq.  (g)  Collins  v.  Young,  1  Macq. 
385.  385.     The  Court  of  Probate  will 

(d)  Fraser  v.  Kershaw,  2  K.  not  appoint  a  receiver  pendente 
&  J.  499.  lite  against  a  surviving  partner, 

(e)  Collins  v.  Young,  1  Macq.  unless  under  very  special  cir- 
385  ;  see  Philipps  v.  Atkinson,  2  cumstances.  Horrell  v.  Witts, 
Bro.  C.  C.  272.  L.  R.  1  Pr.  &  Div.  103. 

(/)  Freeland  v.  Stansfield,  2 

1  See  Renton  v.  Chaplain,  1  Stockton,  62,  and  Walker  v.  House,  4 
Maryl.  C.  Dec.  45  ;  Hamill  v.  Hamill,  27  Maryl.  679.  But  a  receiver 
will  be  appointed  as  a  matter  of  course,  at  the  suit  of  the  representative 
of  a  deceased  partner,  against  a  surviving  partner,  when  the  latter 
has  been  guilty  of  gross  and  flagrant  violation  of  duty,  such  as 
making  a  fraudulent  conveyance  of  the  partnership  assets,  abscond- 
ing from  creditors,  &c.  Such  was  the  case  in  the  firm  of  Gardner  & 
Brother,  whose  receiver  filed  the  bill  in  Tillinghast  v.  Champlin, 
4  B.  Island,  173.  And  so  also  where  the  surviving  partner  neglects 
and  refuses  to  settle  up  the  business  of  the  concern  within  a  reason- 
able time.  Holden  v.  McMackin,  1  Pars.  Sel.  Eq.  Cas.  270  ;  Miller 
v.  Jones,  39  Illinois,  54. 


102  BETWEEN    PARTNERS. 

trol.  If  a  member  of  a  firm  dies,  or  becomes  bankrupt, 
the  partnership  is  determined,  as  far  as  his  representa- 
tives or  assignees  in  bankruptcy  are  concerned.  The 
representatives  of  a  deceased  partner  and  the  assignees 
of  a  bankrupt  partner  are  not  strictly  partners  with 
the  surviving  or  solvent  partner  or  partners  ;  but  are 
only  tenants  in  common  with  them  to  the  extent  of 
the  interest  which  the  partner  whom  they  represent 
had  in  the  partnership  assets  at  the  time  of  his  death 
or  bankruptcy,  as  the  case  may  be.(A)  It  is  conse- 
quently a  matter  of  course  to  appoint  a  receiver  when 
all  the  partners  are  dead,  and  a  suit  is  pending  between 
their  representatives;^')  or  when  such  appointment  is 
sought  by  a  partner  against  the  representatives  or 
assignees  in  bankruptcy  of  his  late  copartner^/:)  Fra- 
ser  v.  Kershaw{l)  is  a  good  illustration  of  the  doctrine. 
There  one  partner  had  become  bankrupt ;  the  share  of 
the  other  partner  had  been  taken  in  execution  under 
a  f.  fa.  for  a  separate  debt,  and  had  been  assigned 
to  his  creditor  by  the  sheriff.  The  creditor,  as  the 
assignee  of  the  sheriff  of  all  the  share  and  interest  of 
the  non-bankrupt  partner,  claimed  the  right  of  wind- 
ing up  the  affairs  of  the  partnership,  and  to  exclude 
the  assignees  of  the  bankrupt  partner  from  interfering. 
But,  on  bill  filed  by  them  against  the  judgment  credi- 
tor, the  court  granted  an  injunction  and  appointed  a 
receiver,  holding  that  the  right  of  the  non-bankrupt 

(A)    /•;./■   parte    Williams,    11         (/')    Philippa    v.  A/Li/ison,  2 
Vcs.  5,  <*i ;  Wilson  v.  Greenwood,     Bro.  0.  0.  272. 
1  Sw.480;  Fraserv.  Kershaw,  I        {/>■)  Freeland  v.  Stansfield,  1G 
K.  A:  .).  499.  Jur.  792  ;  2  Sin.  &  U.  471). 

(/)  2  K.  &  J.  496. 


BETWEEN   PARTNERS.  103 

partner  to  wind  up  the  affairs  was  personal  to  himself 
and  was  not  transferable,  and  did  not,  therefore,  pass 
with  his  shares  and  interest  in  the  partnership  assets. 

Misconduct  of  Partner  a  Ground  for  a  Receiver.— The 
ground  on  which  the  court  is  most  commonly  asked 
to  appoint  a  receiver  is  where  by  the  misconduct  of  a 
partner  his  right  of  personal  intervention  in  the  part- 
nership affairs  has  been  forfeited,  and  the  partnership 
funds  are  in  danger  of  being  lost.  Mere  quarrels  and 
disagreements  between  the  partners,  arising  from  in- 
firmities of  temper,  are  not  a  sufficient  ground  for  the 
interference  of  the  court. (m)1  The  due  winding  up  of 
the  affairs  of  the  concern  must  be  endangered  to  induce 
the  court  to  appoint  a  receiver.(?i)  The  non-coopera- 
tion of  one  partner,  whereby  the  whole  responsibility 
of  management  is  thrown  on  his  copartner,  is  not 
sufiicient.(o)2 

"Where,  however,  a  partner  has  so  misconducted 
himself  as  to  show  that  he  is  no  longer  to  be  trusted  ; 
as,  for  example,  if  one  partner  colludes  with  the  debtors 
of  the  firm,  and  allows  them  to  delay  paying  their 

(m)  See   Goodman  v.  Whit-  comb,  1  J.  &  "W.  593;  Smith  v. 

comb,  1  J.  &  "YV.  593  ;   Chapman  Jeyes,  4  Beav.  505. 

v.  Beach,  lb.  594  n. ;  Marshall  v.  (o)     Roberts    v.    Eberhardt, 

Colman,  2  J.  &  W.  266;  Smith  Kay,  148;  see  Roive  v.  Wood,  2 

v.  Jeyes,  4  Beav.  504.  J.  &  W.  556,  where  one  partner 

(»)    See    Goodman  v.  Whit-  declined  to  advance  more  money 

to  work  a  mine. 


1  Henn  v.  Walsh,  2  Edvv.  C.  R.  129. 

2  See  Smith  v.  Lowe,  1  Edw.  C.  R.  33. 


104  BETWEEN   PARTNERS. 

debts  ;(p)  or  is  carrying  on  a  separate  trade  on  his 
own  account  with  the  partnership  property;^)  or  if  a 
surviving  partner  insists  on  carrying  on  the  business 
and  employing  therein  the  assets  of  his  deceased  part- 
ner;^')1 or  where,  the  partnership  property  being 
abroad,  one  of  the  partners  goes  off  in  order  to  do 
what  he  likes  with  it  ;(s)  or  if  the  persons  having  the 
control  of  the  partnership  assets  have  already  made 
away  with  some  of  them  ;(t)  or  if  there  has  been 
such  mismanagement  as  to  endanger  the  whole  con- 
cern  ;(w)  or  if  one  of  the  partners  has  acted  in  a 
manner  inconsistent  with  the  duties  and  obligations 
which  are  implied  in  every  partnership  contract;^)2 
in  all  such  cases  a  receiver  will  be  appointed. 

The  unwillingness  of  the  court  to  appoint  a  receiver 
at  the  suit  of  one  member  of  a  firm  against  another, 
being  based  on  the  confidence  originally  reposed  in 
each  other  by  the  parties,  the  ground  of  the  rule  has 
no  longer  any  place  if  it  appear  that  the  confidence 

(p)  Estwiclc  v.  Conningsby,  1  (t)  Evans  v.   Coventry,  5  D. 

Tern.  118.  M.  &  G.  911 

(q)  Hardingv.  Glover,  18  Vcs.  (u)  See  De  Tastet  v.  Bordieu, 

281.  cited  2  Bro.  C.  C.  272  ;  Jcfferys 

(>•)  Madgwick  v.    Wimble,  6  v.  Smith,!  J.  &  W.  298  j  Hall 

Beav.   495;   see    Crawshay   v.  t.  Hall,  3  Mac.  &  G.  79;  see 

Maule,  1  S.  W.  507.  Chaplin  v.  Young,  G  L.  T.  N.  S. 

(.s)  Sheppard  v.  Oxevford,  1  97. 

K.  &  J.  -l'.n.  (.>:)  Smith  v.  Jcycs,  4  Beav. 

505. 

1  Holden  v.  McMakin,  ]  Pata.  Sel.  Eq.  Oas.  270 ;  Miller  v.  Jones, 
:;'.»  I  Hindis,  54. 

«  Sir  Saylor  \.  Mockbie,  9  Withrow  (la.),  209 ;  Boycc  v.  Bur- 
chard,  21  Georgia,  74. 


BETWEEN   PARTNERS.  105 

has  been  misplaced.(a)  Where,  accordingly,  a  defend- 
ant, by  false  and  fraudulent  representations,  induced 
the  plaintiff  to  enter  into  partnership  with  him,  and 
the  plaintiff  soon  afterwards,  on  discovering  the  fraud, 
filed  a  bill  praying  that  the  partnership  might  be 
declared  void  and  for  a  receiver,  the  court  on  motion 
ordered  that  a  receiver  should  be  appointed. (b) 

There  is  a  case  for  a  receiver,  even  although  there 
be  no  misconduct  endangering  the  partnership  assets, 
if  one  partner  excludes  another  partner  from  the 
management  of  the  partnership  affairs.^)1  This  doc- 
trine is  acted  on  where  the  defendant  contends  that  the 
plaintiff  is  not  a  partner,^)  or  that  he  has  no  interest 
in  the  partnership  assets.(e) 

In  Hale  v.  Hale,(J)  where  the  defendant  sought  to 
exclude  the  plaintiff  from  all  interest  in  the  partner- 

(rt)  See  Chapman  v.  Beach,  1  therefore  be  a  foundation  for  a 
J.  &  W.  594  n.  receiver;  Kershaw  v.  Matthews, 

(b)  See  Ex  parte  Broome.  1     2  Russ.  62. 

Rose,  69.  [d)  Peacock  v.   Peacock,   16 

(c)  See  Wilson  v.  Greeniuood,  Yes.  49;  Blakeney  v.  Dafaur, 
1  Sw.  481;  Goodman  v.  Whit-    15  Beav.  40. 

comb,  1  J.  &  W.  592 :  Bowe  v.        (e)    Wilson  v.  Greenwood,  1 

Wood,  2  J.  &  W.  558  ;  Const  v.  Sw.  471,  where  the  plaintiffs  were 

Harris,  T.  &  R.  525.   A  dissolu-  the  assignees  of  a  bankrupt  part- 

tion  which   takes   place   on  the  ner.   See  also  Clegg  v.  Fishwick, 

refusal  of  an  appointee  under  a  1   Mac.    &   G.    294,  where    the 

will  to  become  a  partner  is  not  a  plaintiff  was  the   administratrix 

dissolution  arising   from  the  ex-  of  a  deceased  partner, 
elusion  of  the  appointee  by  the         (/)  4  Beav.  369. 
surviving  partner,  and  will  not 

1  See  Maynard  v.  Bailey,  2  Nevada,  313-318;  Shulte  v.  Hoff- 
man, 18  Texas,  678 ;  Hottenstein  v.  Conrad,  9  Kansas,  435 ;  Sei- 
bert  v.  Seibert,  1  Brewster,  531 ;  and  Page  v    VanJcirk,  Id.  287. 


106  BETWEEN   PARTNERS. 

ship  assets,  and  relied  on  illegality  as  a  defence  to  the 
suit,  a  receiver  was  appointed.  In  that  case  the 
plaintiff  and  defendant  had  carried  on  the  business  of 
brewers  for  many  years  in  partnership  together.  The 
plaintiff  filed  a  bill  for  a  dissolution,  and  the  defendant 
then  denied  the  plaintiff's  right  to  any  account  or 
relief  whatever,  on  the  ground  that  he  being  a  spiritual 
person  was  not  competent  by  law  to  engage  in  any 
trading  concern,  and  claimed  the  whole  property  him- 
self. A  receiver  and  manager  was  appointed  on  the 
ground  that  the  defendant  insisted  on  a  legal  objection 
as  destroying  all  right  of  his  copartner  to  a  share  in 
the  profits,  although  the  plaintiff  was  only  a  dormant 
partner,  and  the  defendant's  management  of  the  busi- 
ness was  in  no  way  complained  of.(^) 

Inasmuch  as  the  court  will  not  appoint  a  receiver 
against  a  partner,  unless  some  special  ground  for  doing 
so  can  be  shown,  it  follows  that  in  a  firm  of  several 
members  there  is  more  difficulty  in  obtaining  a  re- 
ceiver than  in  a  firm  of  two.  For  the  appointment  of 
a  receiver  operating  in  fact  as  an  injunction  against 
the  members,  there  must  be  some  ground  for  excluding 
all  who  oppose  the  application.  If  the  object  is  to 
exclude  some  or  one  only  from  intermeddling,  the 
appropriate  remedy  is  rather  by  injunction  than  by  a 
receiver.(/i) 


(f/)  See  :iVm)SIh  jijuirif  v.  Oxen-     the   legality   of  the    partnership 
ford,  I   K.  <fc  .1.  492,  where  a  re-     was  denied, 
ceiver  was  appointed,   although        (7i)  See  Hall  v.  Hall,  3  Mac.  & 


BETWEEN    PARTNERS.  107 

Course  of  Court  where  the  Partnership  is  Denied.— 
Where  a  partnership  is  alleged  on  the  one  side,  and 
denied  on  the  other,  and  a  motion  is  made  for  a  re- 
ceiver, the  court,  if  it  directs  an  issue  as  to  partnership 
or  no  partnership,  usually  declines  to  appoint  a  receiver 
until  that  question  is  determined. (?) 

Receiver  appointed  where  Partners  have  by  Agree- 
ment divested  themselves  of  the  Right  of  winding  up.— 
Another  case  in  which  the  court  may  be  called  upon 
to  appoint  a  receiver,  is  where  the  partners  have  by 
agreement  divested  themselves,  more  or  less,  of  their 
right  to  wind  up  the  affairs  of  the  concern.  In  Davis 
v.  AmerJJc)  for  instance,  the  plaintiff  and  defendant  on 
dissolving  partnership  appointed  a  third  person  to  get 
in  the  assets  of  the  partnership,  and  agreed  not  to 
interfere  with  him.  After  the  agreement  had  been 
partially  acted  on,  one  of  the  partners  died,  and 
disputes  arising  between  the  executors  of  the  deceased 
partner  and  the  surviving  partner,  the  latter  got  in 
some  of  the  debts  of  the  firm  in  violation  of  the 
agreement.  On  a  bill  filed  by  the  executors  of  the 
deceased  partner  for  an  injunction  and  a  receiver,  the 
court  on  motion  appointed  a  receiver,  but  declined  to 
grant  an  injunction,  on  the  ground  that  there  was  no 
sufficient  impropriety  of  conduct  on  the  part  of  the 
defendant  to  render  such  an  order  necessary.(Z)1 

(t)   Peacock    v.   Peacock,   16  (k)  3  Drew.  64. 

Ves.  49  ;  Chapman  v.  Beach,  1  (I)  See  also  Turner  v.  Major, 

J.  &  W.    594  n.;  Fairbum   v.  3Giff.442. 
Pearson,  2  Mac.  &  G.  144. 

1  And  when  the  respective  interests  of  the  partners  have  passed 
to  third  parties,  a  receiver  will  be  appointed.   Maynard  v.  Bailey, 


108  BETWEEN   PARTNERS. 

Receiver  of  Mining  Partnerships.— In  mining  partner- 
ships a  receiver  will  be  appointed  or  refused  upon  the 
same  principles  as  in  other  partnerships.  Accordingly, 
if  a  dissolution  or  winding  up  be  not  sought,  a  receiver 
will  not  he  appointed  ;(m)  but  in  cases  where  a  dissolu- 
tion or  winding  up  is  sought,  a  receiver  and  manager 
will  be  appointed  if  there  are  any  such  grounds  for  the 
appointment  as  are  sufficient  in  other  cases  ;(?i)  or  if 
the  partners  cannot  agree  as  to  the  proper  mode  of 
working  the  mines  until  they  are  sold.(o) 

In  Howe  v.  Wood,(p)  a  receiver  was  refused,  although 
one  of  the  partners  excluded  the  other  from  interfering 
in  the  concern,  but  the  case  was  a  peculiar  one,  for  the 
partner  complained  of  was  not  only  a  partner,  but  also 
a  mortgagee  in  possession,  and  his  mortgage  debt  was 
still  unsatisfied.  Again,  in  Norway  v.  RoKe,{q)  although 
the  plaintiff  was  excluded,  a  receiver  was  refused  on 
the  ground  of  his  laches,  for  he  had  been  excluded  for 

(m)    Roberts    v.    Eberhardt,  sible  to  effect  a  sale,  direct  such 

Kay,  148.  important  alterations  in  the  work- 

(n)  lb.;   Sheppard  v.   Oxen-  ing   as   the   cutting    through   a 

ford,  1  K.  &  J.  491  ;   see  Bow-  fault,  although  the  evidence  be 

lands  v.  Williams,  30  Beav.  310.  all  on  one  side  as  to  the  economy 

(°)  Jejperys  v.  Smith,  1  J.  &  of  working  to  ensue  on  such  a 

W.  298;  Roberts  v.  Eberhardt,  course,  there  being  no  immediate 

Kay,  lf>9  ;  Lees  v.  Jones,  3  Jur.  necessity  for  such  cutting  in  order 

N.  S.954.   A  colliery  partnership  to  carry  on  the  concern.     Lees  v. 

having  been  dissolved  by  decree,  Jones,  3  Jur.  N.  S.  954. 

and  the  sale  of  the  colliery  as  a  (p)  2  J.  &  W.  553. 

going  concern  directed,  the  court  (q)  19  Vcs.  159. 
will  not,  until  it  is  found  impos- 

'_'  Nevada,  313;  see  also  in  this  connection,  O'firyati  v.  Gibbons,  2 
Alaryl.  Ch.  Dec.  9. 


BETWEEN   PARTNERS.  109 

some  time,  and  had  taken  no  steps  to  assert  his  rights 
until  the  mine  proved  profitable. (V) 

In  Rowland  v.  Williams,(s)  where  one  of  the  part- 
ners in  a  mining  concern  had  become  a  lunatic,  the 
court  would  not  appoint  a  manager  to  carry  on  the 
business,  but  ordered  a  sale,  and  appointed  an  interim 
manager  only. 

Partner  appointed  Receiver.— If  the  court,  on  being 
applied  to  for  the  appointment  of  a  receiver,  thinks 
that  a  proper  case  for  such  appointment  is  made,  and 
the  partner  actually  carrying  on  the  business  has  not 
been  guilty  of  such  misconduct  as  to  have  rendered  it 
unsafe  to  trust  him,  the  court  generally  appoints  him 
receiver  and  manager  without  a  salary. (t)  It  is  usual, 
however,  to  require  him  to  give  security  duly  to  manage 
the  partnership  affairs,  and  to  account  for  moneys  re- 
ceived by  him.(w)  In  other  cases  the  appointment  of 
a  receiver  is  referred  by  the  judge  to  the  chief  clerk, 
and  leave  is  frequently  given  for  each  partuer  to  pro- 
pose himself.  A  partner  who  is  appointed  receiver 
becomes  the  officer  of  the  court,  and  must  act  and  be 
regarded  accordingly.^) 


(?•)  See  Clegg  v.  Edmondson,  (u)    Wilson  v.  Greenwood,  1 

8  D.  M.  &.  G.  808.  Sw.  471 ;  Blakeney  v.  Dufaur,  15 

(s)  30  Beav.  310.  Beav.  44. 

{t)  Wilson  v.  Greenwood,  1  (x)  See  Blakeney  v.  Dufaur, 
Sw.  471 ;  see  Maund  v.  Allies,  4  15  Beav.  43.  See  as  to  forms  of 
M.  &  C.  507  ;  Sheppard  v.  Oxen-  order  for  a  receiver,  Set.  ou  Deer. 
ford,  1  K.  &  J.  501 ;  Hoffman  v.  1030,  1032  ;  Wilson  v.  Green- 
Duncan,  18  Jur.  69.  wood,  1  Sw.484.  (See  Appendix.) 


110  BANKRUPTCY. 

Order.— In  cases  where  a  receiver  is  appointed,  of 
partnership  property,  the  order  should  direct  the  other 
partners  and  all  other  parties  to  deliver  over  to  the 
receiver  all  securities  in  their  hands  for  such  estate  or 
property,  and  also  the  stock  in  trade  and  effects  of 
the  partnership,  together  with  all  books  and  papers 
relating  thereto.(y)  The  court  may  abstain  from 
making  an  order  for  the  delivery  of  partnership  books 
and  papers  if  there  is  no  necessity  for  it,  and  it  would 
occasion  inconvenience.^) 


SECTION  XL — IN  CASES  OF  BANKRUPTCY.1 

If  an  equitable  case  can  be  made  out,  the  Court  of 
Chancery  will  interfere  in  aid  of  the  Court  of  Bank- 
ruptcy.^) It  is  in  many  cases  impossible  to  arrive  at 
any  safe  conclusion  upon  the  question  of  debt  or  no 
debt  by  any  other  means  than  a  bill  in  equity.  What, 
too,  is  joint  and  separate  estate,  whether  or  not  specific 
property  is  part  of  the  bankrupt's  estate,  or  whether 
the  assignees  are  about  to  give  to  one  class  of  creditors 
property  which  belongs   to  another,  or  whether   the 

(?/)  Set.  on  Deer.  1002,  1030,  {a)  Pennell  v.  Roij,  3  D.  M.  & 
1031.  0.137. 

(z)  Dacie  v.  John,  McOlell. 
206. 

1  The  position  of  a  receiver  in  bankruptcy  (appointed  under  the 
English  Bankruptcy  rules)  is  not  the  same  as  that  of  a  receiver  in 
chancery.  \  landlord  may  distrain  against  him.  Ex  'parte  Till, 
Re  May  hew,  42  L.  J.  Rep.  N.  S.  84. 


BANKRUPTCY.  Ill 

creditors  are  not  entitled  to  proceed  in  equity  to  prove 
that  they  are  creditors  upon  the  estate,  are  questions 
that  must  often  be  decided  by  other  courts.(ft)  But  as 
soon  as  it  has  been  determined  what  is  the  bankrupt's 
estate,  the  whole  administration  of  it  falls  under  the 
jurisdiction  of  the  Court  of  Bankruptcy.  A  court  of 
equity  has  no  jurisdiction  to  interfere  in  the  mere  dis- 
tribution of  the  estate  on  the  ground  of  trust  or  other- 
wise.^) The  Court  of  Chancery  has  jurisdiction  to 
preserve  property  for  the  purpose  of  handing  it  over 
to  the  Court  of  Bankruptcy,  but  it  is  not  the  proper 
court  to  deal  with  the  proofs  of  creditors,  or  with  the 
administration  and  distribution  of  property  when 
secured  and  capable  of  being  dealt  with  by  the  Court 
of  Bankruptcy. (d)1 

(b)  Thompson  v.  Derham,  1  Ha.  358  ;  Half  or  cl  v.  Gilloiv,  13 
Ha.  373  ;  see  Meux  v.  Smith,  1     Sim.  44. 

M.  D.  &  D.  396  ;  2  M.  D.  &  D.  (d)  Etches  v.  Owen,  16  W.  R. 
789.  964. 

(c)  Thompson  v.  Derham,  1 

1  Under  the  Act  of  Congress  of  March  2,  1867,  "  To  establish  a 
uniform  system  of  bankruptcy  throughout  the  United  States,"  the 
appointment  of  a  receiver  is  not  an  ordinary  step,  as  it  is  not  usually 
necessary  for  the  preservation  of  the  property  of  the  bankrupt  or 
alleged  bankrupt.  That  end  is  ordinarily  attained  through  the 
powers  conferred  upon  the  marshal  under  the  proper  order  of  the 
court.  Cases,  however,  have  arisen  in  which  the  appointment  of  a 
receiver  has  been  held  to  be  eminently  proper.  Such  was  Sedgwick 
v.  Place,  3  Bank.  Reg.  35.  In  this  case  P.  and  S.  had  made  an  as- 
signment to  another  for  the  benefit  of  creditors.  They  were  subse- 
quently adjudicated  bankrupts,  and  Sedgwick  became  their  assignee 
in  bankruptcy.  The  bill  was  filed  to  set  aside  the  assignment  for  the 
benefit  of  creditors.  An  injunction  was  granted  restraining  the 
assignors  and  assignees  from  interfering  with  or  disposing  of  the 
property,  aud,  at  a  subsequent  stage  of  the  cause,  a  motion  was  made 


112  BANKRUPTCY. 

The  Court  of  Chancery  has  no  jurisdiction  to  ad- 
minister assets  subject  to  a  trust  deed  registered  under 
the  Bankruptcy  Act,  1861.  The  court  will  not,  at  the 
instance  of  creditors,  appoint  a  receiver  over  the  trus- 
tees of  such  a  deed,  except  where  a  very  special  case 
for  such  appointment  is  made  out.(e)  In  Riches  v. 
Owen(f)  a  receiver  was  appointed ;  but  the  bill  in  that 

(e)  Bell  v.  Bird,  lb.  1 165.  (/)  lb.  964,  on  Appeal,  L.  K. 

3  Ch.  App.  821. 

for  a  receiver.  It  appeared  by  affidavits  that  certain  debts  due  the 
bankrupts  were  withheld  by  the  debtors  in  consequence  of  this  con- 
flict between  the  two  sets  of  assignees.  It  was  held  (by  Blatchford, 
J.)  that  the  appointment  of  a  receiver  was  a  proper  and  necessary 
measure.  "  By  the  injunction  granted  by  this  court  on  the  bill,  and 
which  the  defendants  have  not  moved  to  vacate  or  to  modify,  the 
voluntary  assignees  are  restrained  from  in  any  manner  interfering 
with  the  property  in  question.  They,  therefore,  cannot  lawfully 
collect  any  of  the  debts  or  realize  any  of  the  assets,  nor  can  they 
meddle  with  the  property  even  to  secure  it  from  loss.  ...  A  re- 
ceiver who  will  represent  the  conflicting  titles  to  the  property  ought 
to  be  put  into  possession  of  it,  that  he  may  effectually  collect  all  the 
debts  which  are  collectible,  and  sell,  if  necessary,  with  a  clear  title, 
the  merchandise  which  is  on  hand."  So,  also,  in  Barnes  v.  Rettew, 
28  Leg.  Int.  125,  where  a  bill  was  filed  by  an  assignee  in  bankruptcy 
to  set  aside  a  prior  assignment  for  the  benefit  of  creditors,  the  court 
said  in  their  opinion  (delivered  by  Cadwalader,  J.)  that  in  such  a 
case  an  injunction  would  be  granted  and  a  receiver  appointed,  when 
such  a  measure  was  required  in  order  to  prevent  the  purposes  of  the 
bankrupt  law  from  being  frustrated  or  impeded.  And  see  Alabama 
§•  Chattanooga  R.  R.  Co.  v.  Jones,  5  Nat.  Bank.  Reg.  97  ;  and 
Kcenan  v.  Shannon,  9  Id.  441.  In  this  last  case  the  Judge  said  : 
"  I  am  generally  averse  to  this  course  in  bankruptcy,  but  where  the 
apparent  titles  to  property  arc  such  on  their  face  that  the  marshal 
cannot  act  efficiently  under  the  usual  warrant,  a  receivership  may  in 
some  cases  be  indispensable." 

In  some  instances  (not  reported)  1  lie  court  has  appointed  a  receiver 
to  act  as  provisional  assignee,  pending  the  election  of  an  assignee, 
when  the  exigencies  of  the  case  required  such  appointment. 


LUNACY.  113 

case  was  filed  by  the  trustees  of  the  deed  against  the 
debtor,  and  the  deed  was  a  special  one  and  contained 
peculiar  covenants.  The  court  appointed  a  receiver  so 
as  to  preserve  the  property,  and  insure  its  being  brought 
within  the  limits  of  the  deed,  but  put  the  plaintiffs  on 
an  undertaking  to  abide  by  any  directions  the  Court 
of  Bankruptcy  might  give  as  to  the  property  when 
received  and  secured. 

When  assignees  in  bankruptcy  possess  themselves  of 
effects  which  belong  to  the  bankrupt  as  executor  only, 
the  court,  on  bill  filed,  will,  to  secure  such  effects,  ap- 
point a  receiver,  to  whom  the  assignees  shall  account  for 
so  much  as  they  have  got  in  of  the  testator's  estate.^) 


SECTION  XII. — IN  CASES  OF  LUNACY. 

A  receiver  will  be  appointed  over  the  estate- of  a 
lunatic,  iu  cases  where  it  is  clearly  shown  that  neither 
the  heir  at  law  nor  any  of  the  kin  will  act  as  committee, 
or  can  give  the  necessary  security,  and  also*  that  no 
other  person  can  be  found  who  will  act  as  committee 
and  give  the  necessary  security  without  being  paid.(A) 
So,  also,  a  receiver  may  be  appointed  where  the  commit- 
tee is  infirm,  or  where  the  management  of  the  estate  is 
very  onerous  ;(i)  or  where  the  committee  lives  far  from 


(g)  Ex  parte  Tapper,  1  Rose,     621 ;  Ex  parte  Radcliffe,  1J.  & 
179 ;  2  Madd.  Ch.  641.  W.  639. 

■(h)  Ex  parte  Warren,lOVes.        (i)  Re  Birch,  Shelf,  on  Lun. 

187. 

8 


114  TENANTS   IN   COMMON. 

the  estate.(Zr)1  In  one  case,  where  it  was  thought  expe- 
dient to  appoint  a  receiver,  and  the  person  appointed 
as  committee  of  the  estate  declined  to  act  as  committee 
if  another  person  was  appointed  receiver,  an  inquiry 
was  directed  as  to  the  propriety  of  employing  the  com- 
mittee in  the  latter  capacity. (I) 

The  expense  of  a  receiver,  it  would  seem,  is  not  to 
be  incurred  in  order  that  a  person  who  cannot  give 
security  may  be  appointed  committee.(m)  Notwith- 
standing the  appointment  of  a  receiver,  it  may  happen 
that  a  committee  of  the  estate  also  is  required  for  the 
more  effectual  management  of  the  lunatic's  property, 
granting  of  leases,  or  the  performance  of  other  legal 
acts  which  a  receiver,  not  having  the  legal  custody  of 
the  estate,  is  unable  to  fulfil.  In  such  cases  the  com- 
mittee is  restrained  by  the  order  appointing  him  from 
receiving  any  part  of  the  lunatic's  moneys,  and  gives 
usually  nominal  security  only.(n) 


SECTION  XIII. — IN  THE  CASE  OF  TENANTS  IN  COMMON. 

The  court  will  not  grant  a  receiver  against  a  tenant  in 
common  in  possession  at  the  suit  of  another  tenant  in 

(k)  lie  Seaman, Shelf,  on  Lun.  (n)  Re Billinghurst, Amb.104  j 

187.  Re  Radcliffe,  1J.  &  W.  639 ;  1 

(/)  Re  Langham,  1  Jur.  281.  Coop.  0.  C.  250. 
(m)  lie  Frank,  2  Russ.  450. 

1  In  the  case  of  Kenton  (a  lunatic),  5  Binncy,  613,  a  commission 
de  lunatico  inquirendo  had  issued,  and  the  party  had  been  found 
to  be  a  lunatic,  but  the  inquisition  was  not  yet  returnable.  It  being 
shown  that  the  estate  was  suffering,  and  that  there  was  no  proper 
person  to  take  care  of  it,  the  court  appointed  a  receiver. 


TENANTS    IN   COMMON.  115 

common,  unless  in  case3  of  destructive  waste  or  gross 
exclusion.(o)1  In  Tyson  v.  Fair  dough, {p)  Sir  J.  Leach, 
M.R.,  expressed  a  doubt,  whether,  even  in  the  case  of  an 
actual  exclusion  of  one  tenant  in  common  by  another, 
the  court  would  appoint  a  receiver,  when  the  party 
complaining  has  an  estate  which  he  can  assert  at  law, 
upon  the  ground  that  he  may  relieve  himself  at  law 
by  writ  of  partition.  But  the  remarks  of  his  Honor 
do  not  seem  to  be  borne  out  by  the  cases,  if  indeed 
they  have  not  been  misunderstood. (7)  There  are  two 
cases  in  Dickens'  Reports,  Calvert  v.  Adams, {r)  and 
Evelyn  v.  JEvelyn,(s)  where  a  receiver  was  appointed  of 
undivided  estates.  They  were  probably  cases  of  an 
aggravated  nature,  warranting  the  interposition  of  the 
court.  The  ground  for  the  order  for  a  receiver  in 
Street  v.  Anderton{t)  does  not  appear.  But  it  was 
said  by  the  counsel  in  his  argument,  in  Archdeacon  v. 
Bowes, {u)  that  the  reason  of  it  was  because  the  tenant 

(0)  Norioay  v.  Roioe,  19  Ves.         (q)  See  Searle  v.  Smales,  3  W. 

159 ;  see  Scurrah  v.  Scurrah,  14  K.  437. 
Jur.  874;  Sanford  v.  Ballard,        (r)  2  Dick.  478. 
30  Beav.  109;  but  see  Searle  v.         (s)  lb.  800. 
Smales,  3  W.  R.  437.  (t)  4  Bro.  C.  C.  414. 

(p)  2  Sim.  &  St.  142.  («)  3  Anst.  752. 


1  In  Williams  v.  Jenkins,  11  Georgia,  595,  it  was  held  that  the 
appointment  of  a  receiver  upon  the  application  of  one  tenant  in  com- 
mon against  his  co-tenants,  was  proper  in  a  case  where  the  defend- 
ants were  in  possession  of  undivided  valuable  property,  were  re- 
ceiving the  whole  of  the  rents  and  profits,  were  excluding  their 
companion  from  the  receipt  of  any  portion  thereof,  and  were  insol- 
vent. See  also  Low  v.  Holmes,  2  0.  E.  Green,  148  ;  Delaware,  Sfc. 
R.  R.  v.  Erie  R.  R.,  6  Id.  298  ;  and  Pignolet  v.  Bushe,  28  How. 
Pr.  R.  9. 


116  TENANTS    IN    COMMON. 

in  common  in  possession  took  more  than  his  share  of 
the  profits.  In  the  notes  to  4  Bro.  C.  C.  414,  Bell 
states  an  anonymous  case  taken  by  himself  before  Sir 
"W.  Grant,  M.R.,  sitting  for  the  Lord  Chancellor, 
wherein  a  receiver  was  appointed  on  the  motion  of  a 
younger  brother  against  the  eldest  brother,  who  ex- 
cluded him  on  the  ground  that  an  agreement  made 
between  them  to  compromise  adverse  claims,  and 
whereby  the  eldest  brother  and  heir  at  law  admitted 
his  younger  brother  to  a  tenancy  in  common  with  him, 
was  entered  into  while  he,  the  eldest  brother,  was  in  a 
state  of  intoxication. 

In  Milbank  v.  Hevett,(x)  it  seems  to  have  been  con- 
sidered that  the  principles  upon  which  a  receiver  is 
appointed  in  partnership  cases  are  also  applicable  to 
the  case  of  tenants  in  common.  But  the  case  was 
very  shortly  and  very  loosely  argued.  There  can  be 
little  doubt  that  such  would  not  have  been  the  opinion 
of  the  court,  had  the  case  been  more  fully  argued.(?/) 

Exclusion,  in  the  true  legal  sense  of  the  word,  is 
where  one  tenant  in  common  receives  the  whole  rents 
and  profits,  and  refuses  to  pay  over  to  his  companion 
the  share  due  him.(Y)  A  bare  notice  to  the  tenants 
by  one  tenant  in  common  not  to  pay  the  rents  any 
longer  to  the  other  tenant  in  common,  is  not  an  ex- 
clusion. A  motion,  therefore,  for  a  receiver  by  one 
tenant  in  common,  against  his  co-tenant,  on  the  ground 

(x)  2  Mer.  405.  (-.-)   Tyson  v.  Fairclough,  lb. ; 

(y)    Tyson  v.    Fairclough,  2  Sandford  v.  Ballard,  33  Bcav. 

Sim.  &  St.  U2,per  Sir  J.  Leach,  401. 
M.  It. 


TENANTS   IN   COMMON.  117 

that  the  latter  had  advertised  the  estate  for  sale,  and 
had  given  notice  to  the  tenants  to  pay  their  rents  to 
him  alone,  was  refused  hecause  the  conduct  complained 
of  did  not  amount  to  an  exclusion. (a) 

It  would  seem  that  in  the  absence  of  exclusion,  a 
receiver  of  the  applicant's  share  of  the  rents  and  profits 
may  be  appointed  ;(b)  though  Lord  Northington  ob- 
jected to  appoint  a  receiver  of  an  undivided  moiety, 
because  he  cannot  let,  set,  or  distrain  without  the 
owner's  consent. (c) 

Equitable  Tenants  in  Common.— The  same  considera- 
tions are  applicable  to  the  case  of  tenancy  in  common 
in  equitable  estates.  An  equitable  tenant  in  common 
is  not  entitled  to  have  a  receiver  appointed  as  against 
his  companion,  unless  there  be  exclusion.  If  the  con- 
duct of  the  tenant  in  common  in  possession  amounts 
to  exclusion,  or  if  the  trustee  puts  him  in  possession 
of  the  whole  estate  to  the  exclusion  of  the  other,  a 
receiver  of  the  whole  property  will  be  appointed.  If 
there  be  no  exclusion,  a  receiver  of  the  applicant's 
share  only  will  be  appointed.^)1 

(a)  Tyson  v.  Fairdough,  2  (d)  Sanford  v.  Ballard,  30 
Sim.  &  St.  142  ;  but  see  Searle  v.  Beav.  109  ;  33  Beav.  401 ;  see 
Smales,  3  W.  E.  437.  Street  v.  Anderton,  5  Bro.  C.  C. 

(b)  Fall  v.  Elkins,  9  W.  R.  414;  Tyson  v.  Fairdough,  2  Sim. 
861 ;  see  Hargrave  v.  Hargrave,  &  St.  145  ;  Hargrave  v.  Har- 
9  Beav.  549.  grave,  9  Beav.  549  ;  comp.  Searle 

(c)  Willoughby  v.  Willoughby,     v.  Smales,  3  W.  R.  437. 
cited  2  Dick.  478. 


1  In  Ware  v.   Ware,  42  Georgia,  408,  the  complainant,  a  minor, 
had,  in  a  previous  suit,  obtained  a  decree  against  the  defendaut  for  a 


118  TENANTS   IN    COMMON. 

Receiver  not  Appointed  on  Submission  of  Party.— In- 
stead of  granting  the  order  for  a  receiver,  the  court 
may  order  the  tenant  in  common  in  possession  to  give 
security  for  payment  of  the  due  proportion  of  the 
rents  to  his  co-tenant.(e) 

Some  of  the  Tenants  in  Common  Infants. — Where 
some  of  the  tenants  in  common  are  infants,  there  ma}7 
he  a  receiver  over  the  whole  estate,  with  directions  to 
pay  to  the  adults  their  shares  in  the  rents.(/)  In  a 
case  where  there  was  a  dispute  between  tenants  in 
common  of  real  estate,  in  reference  to  the  receipt  of 
rents,  and  some  of  the  parties  interested  were  infants 
and  other  tenants  for  life,  the  court  appointed  one  of 
the  disputants,  who  had  an  estate  for  life,  and  another 
person  nominated  by  the  other  parties,  joint  receivers 
of  the  whole  estate.(^)  If  a  receiver  has  been  ap- 
pointed for  the  benefit  of  two  infant  tenants  in  com- 

(e)  Street  v.  Anderton.  4  Bro.         (g)  Rimsden  v.  Fairthrope,  1 
C.  C.  414.  N.  R.389. 

(/)  Smith  v.  Lyster,  4  Beav. 
227. 

certain  sum  of  money  improperly  appropriated  by  him,  but  which 
was  directed,  by  its  terms,  to  be  charged  upon  certain  real  estate  of 
the  defendant,  and  to  operate  as  a  conveyance  to  the  complainant  of 
an  undivided  interest  to  that  extent  in  the  same.  In  the  present 
bill  the  complainant  alleged  insolvency  on  the  part  of  the  defendant, 
that  he  had  refused  a  sale,  was  in  collusion  with  others  and  was 
committing  waste.  It  was  held  that  it  was  proper  that  the  court 
should  take  possession  of  the  property  and  compel  all  parties  in  in- 
terest to  come  forward  and  present  their  respective  claims  for  adju- 
dication and  settlement,  and  to  thai  end  the  cause  was  remanded  to 
the  Court  below  with  directions  to  appoint  a  receiver. 


TENANTS    IN    COMMON.  119 

mon,  he  will  not  be  discharged  as  to  the  share  of  one 
of  them  who  has  attained  his  fall  age.  The  object 
of  appointment  having  been  to  protect  the  property 
during  the  infancy  of  both,  and  the  purpose  for  which 
the  receiver  was  appointed  not  having  therefore  been 
fully  accomplished,  the  application  for  his  discharge 
should  be  delayed  until  both  are  of  age.(/i)  The  one 
who  since  the  appointment  of  a  receiver  has  become 
adult,  may,  however,  apply  for  the  payment  of  his 
share  to  himself.(T) 

Tenancy  in  Common  when  the  Interest  in  Land  is  in 
the  Nature  of  a  Trade.— If  the  interest  in  land  in  which 
parties  take  as  tenants  in  common  is  in  the  nature  of 
a  trade,  a  receiver  will  be  appointed  or  refused  on  the 
same  principles  as  in  partnership  cases.1  Mines,  for 
instance,  are  to  be  considered  in  the  nature  of  a  trade, 
and  where  persons  have  different  interests,  it  is  to 
be  regarded  as  a  partnership  ;  and  the  difficulty  of 
knowing  what  is  to 'be  paid  for  wages,  and  the  ex- 
penses of  management,  gives  the  court  a  jurisdiction 
as  to  the  mesne  profits  which  it  would  not  assume  in 
other  lands.(/<:)2 

(7i)  Smith  v.  Lyster,  4  Beav.  (k)  Jefferys  v.  Smith,  1  J.  & 
227.  W.  298. 

(V)  lb. 

1  Where  M.  was  interested  in  unimproved  city  lots  jointly  with 
D.,  who  held  the  legal  title  and  died  having  given  his  executors  a 
power  of  sale,  it  was  held  that  the  power  was  subject  to  the  control 
of  the  Court  for  M.'s  benefit,  and  to  that  end  a  receiver  was  ap- 
pointed.    Marvin's  v.  Drexel's  Extrs.,  18  P.  F.  Sm.  362. 

2  See  the  language  of  the  court  in  Hill  v.  Taylor,  22  Cal.  191. 


120  POSSESSION    UNDER    A    LEGAL   TITLE. 

There  are  two  ways  in  which  a  mining  concern  may 
be  viewed  ;  it  may  be  a  mining  concern  really  held  as 
property  by  parties  who  have  acquired  it  for  the  pur- 
poses of  trade,  as  in  a  case  where  an  estate  containing 
mines  has  descended  from  the  owners  to  two  co-heirs ; 
and  such  owners,  though  they  did  not  acquire  it  for 
mining  purposes,  may  nevertheless  agree  to  work  the 
mines  together  with  their  joint  property.  That  would 
be  working  the  mines  in  partnership.  There  would 
be  a  partnership  in  the  working,  though  not  in  the 
land.  The  other  case  would  be  one  in  which  the 
whole  property  was  intended  to  be  used  as  a  part- 
nership concern.  In  either  case  a  receiver  may  be 
appointed  upon  the  same  principles  as  in  other  part- 
nership cases.  (I) 


SECTION   XIV. — IN   THE  CASE    OF  PARTIES  IN  POSSESSION  OF 
REAL  ESTATE  UNDER  A  LEGAL  TITLE. 

In  what  Cases  a  Receiver  will  not  be  Granted.— The 
court  will  not,  at  the  instance  of  a  person  alleging  a  mere 
legal  title  against  another  party  who  is  in  possession 
of  real  estate,  and  who  also  claims  to  hold  by  a  like 
legal  title,  disturb  that  possession  by  appointing  a  re- 
ceiver. There  being  open  to  the  plaintiff  a  full  and 
adequate  remedy  at  law,  he  has  no  equity  to  come  to 
the  court  for  relief.  The  court  cannot  interfere  with 
a  legal  title,  unless  there  be  some  equity  by  which  it 
can  affect  the  conscience  of  the  party  in    possession. 

(I)  Roberts  v.  Eberhardt.  Kay,  159,  per  Lord  Ilatherley. 


POSSESSION   UNDER    A    LEGAL   TITLE.  121 

"Where  there  is  an  entire  want  of  privity  between  the 
parties,  and  the  party  in  possession  is  simply  a  wrong- 
doer at  law,  the  court  will  not  take  upon  itself  to  inter- 
pose, unless  in  certain  very  exceptional  cases.  There 
may  be  cases  in  which  the  court  would  interfere  to  pre- 
vent absolute  destructive  waste,  where  the  value  of  the 
property  would  be  destroyed,  if  steps  were  not  taken,  or 
where  the  contest  lies  between  a  person  having  a  well- 
established  pedigree,  and  a  person  without  any  reason- 
able appearance  of  title  ;  but,  as  a  general  rule,  where 
one  person  is  in  possession  of  the  rents  and  profits  of 
an  estate,  claiming  to  be  the  holder  by  a  legal  title, 
and  another  person  claims  to  hold  by  a  like  legal  title, 
the  former  cannot  be  ousted  in  this  court  until  that 
legal  title  has  been  finally  determined  at  law.1  As  re- 
gards the  enjoyment  of  the  ordinary  rents  and  profits 
of  an  estate,  the  court  has  never  assumed  a  right  to 
interfere  with  that  title  which  the  law  confers  upon 
every  terre  tenant  in  possession  of  real  property .(m)a 

(to)  EarlTalbot  v.  Hope  Scott,  v.  Duplessts,  1  Yes.  324  ;  2  Yes. 
4  K.  &  J.  112;  Carroivv.  Ferrier,  360;  Clark  x.  Dew,  1  R.  &  M. 
L.  R.  3  Ch.  App.  720 ;  see  Knight    109  ;  Jones  v.  Jones,  3  Mer.  173. 


1  This  rule  does  not  apply  where  the  property  is  already  in  the 
custody  of  a  receiver  in  suits  between  adverse  claimants,  and  a 
third  party,  claiming  adversely  to  all  other  litigants,  asks  that  the 
receivership  be  continued.  State  of  Tennessee  v.  J.  C.  Allen,  1 
Cooper,  512. 

2  See  Hitchen  v.  BirTcs,  L.  R.  10  Eq.  471  ;  Parkin  v.  Seddons,  L. 
R.  16  Eq.  34;  Schlecht's  Appeal,  60  Penna.  St.  R.  176  ;  Pfeltz  v. 
Pfeltz,  14  Maryl.  376 ;  Fellows  v.  Heermans,  13  Abb.  Prac.  Rep. 
(N.  S.)  1.  See,  however,  Rogers  v.  Marshall,  6  Abb.  Pr.  R.  (N.  S.) 
457. 


122  POSSESSION    UNDER    A    LEGAL    TITLE. 

The  fact  that  the  estates  may  be  of  great  value  makes 
no  difference  in  the  principle  :  nor  can  the  argument 
that  immediate  injury  will  be  occasioned  in  the  loss 
of  the  rents  and  profits  in  case  a  receiver  is  not  ap- 
pointed be  listened  to.  The  court  might  be  inflicting 
as  much  injury  by  granting  a  receiver  as  by  withhold- 
ing one.(?i)  If  the  devisee  of  an  estate  obtains  posses- 
sion by  the  tenants  attorning  to  liim,  he  holds  the 
estate  till  some  other  person  can  show  that  he,  as  heir 
or  otherwise,  has  a  better  right  to  possession. (o)  Un- 
less there  be  a  case  of  collusion  between  the  devisee 
and  the  tenants,  in  inducing  them  to  attorn  to  him, 
there  is  no  equity  for  a  receiver.^)  Nor  is  the  fact 
that  some  of  the  tenants  may  not  have  attorned  to  the 
devisee  in  possession,  a  ground  for  granting  a  receiver 
of  such  rents.(g)  In  a  case,  accordingly,  where  a  bill 
was  filed  alleging  that  the  plaintiff' claiming  a  certain 
peerage  was  entitled  to  certain  estates,  as  having  been 
inalienably  annexed  to  such  peerage  by  Act  of  Parlia- 
ment, and  praying  for  a  receiver  of  the  rents  and  profits 
of  the  estate  as  against  the  devisee  of  the  late  holder 
of  the  peerage,  who  had  got  into  possession  of  the 
estates,  a  demurrer  was  allowed. (r)  So,  also,  in  a  case 
where  a  party  was  in  possession  of  property  under  a 
will,  which  he  had  established  against  the  heir  at  law 
in  a  suit  to  which  the  plaintiff*  was  not  a  party,  and 
the  plaintiff*  claiming  as  devisee  under  a  prior  will, 
and  impugning  the  validity  of  the  will  under  which 

(//)  Earl  Talbot  v.  Hope  Scott,        (?>)  lb.  1 19. 
4  K.  &  .1.  119.  (q)  lb.  120. 

(o)  lb.  117.  (r)  lb.  96. 


POSSESSION   UNDER    A    LEGAL   TITLE.  123 

the  defendant  claimed,  has  recovered  a  verdict  at  law, 
but  the  verdict  had  not  been  confirmed  by  judgment, 
the  court  would  not,  at  the  instance  of  the  plaintiff, 
appoint  a  receiver,  inasmuch  as  the  possession  of  the 
defendant  was  not  shown  to  have  been  obtained  by 
violence  or  wrong,  and  he  was  in  possession  under  the 
sanction  of  the  court.(s)1 

The  fact  that  the  legal  estate  may  be  outstanding  in 
trustees  is  immaterial  to  the  question.(^)  The  exist- 
ence of  outstanding  terms  makes  no  difference  as  to 
the  appointment  of  a  receiver,  the  course  of  the  court 
being  merely  to  put  the  outstanding  terms  out  of 
the  way,  and  not  to  treat  them  as  introducing  new 
equities.(tt) 

It  is  also  immaterial  to  the  question  that  the  posses- 
sion may  be  vacant,  and  that  the  court  may  not  be 
asked  to  turn  any  one  out  of  possession.  The  law 
looks  on  a  person  in  possession  of  real  estate  as  enti- 
tled to  keep  it  till  some  one  else  can  show  a  better 
title.     Though  the  court  will  interfere  to  protect  per- 

(s)  Bainbrigge  v.  Baddeley,  621 ;  Wright  v.  Wilhins,  7  "W.  R. 

3  Mac.  &  G.  413  ;  see  also  Lloyd  337. 

v.  Passingham,  16  Ves.  70 ;  Still-  (t)  Bainbrigge  v.  Baddeley,  3 

well  v.  Wilkins,  Jac.  282  ;  Lan-  Mac.  &  G.  413. 

cashire  v .  Lancashire,  9  Beav.  (it)  lb. ;  Carroiv  v.  Ferrier, 1j. 

127  ;  Toldervy  v.  Colt,  1  Y.  &  C.  R.    3    Ch.  App.  728,  per   Lord 

Hatherley. 

1  The  general  rule  on  this  subject  is  followed  in  the  United  States. 
See  Willis  v.  Corlies,  2  Edwards,  C.  R.  281 ;  The  Chicago,  §•<;.,  Co.  v. 
The  U.  S.  Petroleum  Co.,  57  Penna.  St.  R.  83;  Stuyvesant  v.  Davis, 
9  Paige,  C.  R.  427  ;  Kipp  v.  Hanna,  2  Bland,  26  ;  Cofer  v.  Echer- 
son,  6  Clarke,  504;  Brady  v.  Furlow,  22  Georgia,  613. 


124  POSSESSION   UNDER   A   LEGAL   TITLE. 

sonal  estate  pending  litigation  as  to  probate,  the  case 
is  different  where  real  estate  is  the  subject  of  contest. 
The  court  will  not  interfere  as  to  real  estate  unless 
there  is  an  equity.(a;) 

The  fact  that  the  party  by  whose  decease  the  succes- 
sion has  opened  may  have  been  a  lunatic  does  not 
affect  the  principle.  Nor  is  any  equity  raised  by  the 
circumstance  that  the  person  who  has  been  solicitor  to 
the  committee  of  the  deceased  lunatic  was  acting  as 
the  solictor  of  the  party  who  had  got  possession,  and 
had  induced  the  tenants  to  attorn  to  him,  nor  by  the 
circumstance  that  some  of  the  tenants  had  been  in- 
duced to  attorn  by  the  party  who  had  taken  posses- 
sion, granting  them  leases  on  very  favorable  terms. Q/) 

In  what  Cases  the  Court  will  appoint  a  Receiver  against 
the  Legal  Estate.— The  court  will,  however,  interfere 
with  the  possession  of  a  party  holding  under  a  legal 
title,  by  appointing  a  receiver,  if  a  good  equitable  case 
be  made  to  appear.  If  the  court  is  satisfied,  upon  the 
pleadings  and  the  materials  it  has  before  it,  that  the 
relief  prayed  by  the  bill  will  be  given  at  the  hearing, 
and  that  it  is  necessary,  expedient,  or  equitable  that 
the  property  in  question  should  be  secured  until  the 
hearing,  there  is  a  case  for  a  receiver.(^)  A  receiver, 
according^  will  bo  appointed  against  a  party  having 

(x)  lb.  729.  Ves.  70 ;  StUlwell  v.  Will-ins,  Jac. 

[y)  lb.  720.  282 ;  Clark  v.  Dew,  1  R.  &  M. 

(z)  Mordaunt  v.  Hooper,  Amb.  103  ;  George  v.  Evans,  4  Y.  &  C. 

311 ;  Hugueninv.Basley,  13  Ves.  2U  ;  Baiubrigge  v.  Baddeley,  3 

107;  Lloyd  v.  Passingham,  16  Mac.  &  G.  420. 


POSSESSION    UNDER    A    LEGAL    TITLE.  125 

the  legal  title,  if  a  case  of  fraud  be  made  out  to  the 
satisfaction  of  the  court.(a)1  Where,  for  example,  a 
man  who  had  taken  a  lease  of  copyholds  during  the 
widowhood  of  a  woman  who  was  entitled  thereto  for 
her  widowhood,  had  concealed  the  death  of  the  widow, 
and,  taking  advantage  of  the  loss  of  the  court  rolls, 
pretended  that  the  premises  were  freehold,  and  had 
descended  to  him  as  heir,  Lord  Hardwicke  granted  a 
receiver.(6)  So,  also,  in  a  case  where  a  bill  was  liled 
impeaching  a  sale  of  land  on  the  ground  of  fraud,  and 
alleging  gross  inadequacy  of  consideration  and  undue 
influence,  the  court  appointed  a  receiver  in  a  suit  in- 
stituted against  the  devisees  of  the  party  charged  with 
fraud.(<?)  So,  also,  where  a  woman  entitled  to  a  life- 
interest  in  certain  real  estates  and  a  particular  sum  of 
stock,  and  a  rent-charge  issuing  out  of  her  husband's 
estates,  fraudulently  obtained  a  transfer  of  the  stock, 
and  sold  it  out,  and  afterwards  assigned  her  life-in- 
terest in  the  real  estate  and  the  rent-charge  to  her  son 
for  value,  but  with  notice  of  the  fraud,  a  receiver  of  the 
rents  of  the  real  estate,  and  the  rent-charge  so  assigned, 
was  appointed  at  the  suit  of  the  parties  interested  in 
the  stock  after  her  death. (d) 

(a)  Haguenin  v.  Basley,   13  (c)  Stillwell  v.  WiUcins,  Jac 

Yes.  105 ;  Lloyd  v.  Passingham,  282. 

16  Yes.  59.  {d)    Woodyatt   v.   Gresley,  8 

{b)  Mordaunt  v.  Hooper,  Amb.  Sim.  187. 
311 ;  but  see  Carrow  v.  Ferrier, 
L.  E.  3  Ch.  App.  729. 

1  See  Corcoran  v.  Doll,  35  Cal.  476  ;  and  also  the  remarks  of  the 
Chancellor  in  Kipp  v.  Hanna,  2  Bland,  26. 


126  POSSESSION    UNDER    A    LEGAL    TITLE. 

Another  case  in  which  the  court  will  interfere  and 
appoint  a  receiver  against  parties  holding  under  a  legal 
title,  is  where  trustees  or  executors  have  improperly 
managed  the  trust  estate.(e)1 

The  disinclination  of  the  court  to  appoint  a  receiver 
where  the  property  is  in  possession  of  a  party  having 
the  legal  estate,  is  felt  in  those  cases  only  in  which  the 
estate  of  the  party  in  possession  is  prior  to  that  of  the 
parties  in  litigation.  Where  the  right  to  the  posses- 
sion is  the  subject  of  dispute,  and  the  plaintiff  having 
an  equitable  interest  claims  the  legal  estate  from  the 
defendant  in  possession,  the  court  will,  if  it  sees  clearly 
that  the  plaintiff  has  the  right,  and  that  the  ultimate 
decree  will  be  in  his  favor,  appoint  a  receiver.  A 
receiver,  accordingly,  will  be  appointed  pending  a  suit 
for  specific  performance  against  a  party  holding  under 
a  legal  title,  if  the  court  is  satisfied  that  the  decree 
will  be  in  favor  of  the  plaintiff,  and  that  it  is  expedient 
or  equitable  that  a  receiver  should  be  appointed. (/) 
So,  also,  and  upon  the  same  principle,  where  a  person 
takes  a  conveyance  of  a  legal  estate,  subject  to  equita- 
ble interests,  he  must  satisfy  those  interests,  or  submit 
to  the  appointment  of  a  receiver.(^)  If,  accordingly, 
the  mortgagee  of  a  legal  estate,  subject  to  an  equitable 

(e)  Supra,  p.  18.  (;/)   Pritchard   v.   Fleetwood, 

(/)  Supra,  pp.  85-87.  1  Mfer.  54. 

1  A  receiver  will  in  some  cases  be  appointed  on  the  application  of 
a  landlord  as  against  ;i  tenant;  See  Robertson  v.  Ross, 40  Georgia, 
',',',:>.  Bui  as  a  general  rule  snch  an  application  will  be  refused; 
Chicago,  Ac  Co.  v.  U.  ^.  Petroleum  Co.,  7  P.  P.  Sm.  83. 


POSSESSION   UNDER    A    LEGAL   TITLE.  127 

rent-charge,  refuse  to  pay  the  rent-charge,  a  receiver 
will  be  appointed. (A)  So,  also,  where  a  judgment 
creditor  had  obtained  possession  of  land  under  an 
elegit,  a  receiver  was  appointed  at  the  suit  of  an  equita- 
ble mortgagee  by  deposit  of  deeds,  whose  security  was 
prior  in  date  to  the  recovery  of  the  judgment  debt.(f) 
The  rule  that  a  receiver  will  not  be  appointed  when 
the  party  having  the  legal  estate  is  in  actual  possession 
of  the  property,  does  not  apply  where  the  party  in 
possession  is  merely  so  upon  execution  under  a  judg- 
ment. In  such  case,  a  creditor  having  taken  out 
execution  cannot  hold  property  against  an  estate 
created  prior  to  his  debt.(Zr)1 

(h)  lb. ;  see  Shec  v.  Harris,  1  728  ;  Andersonv.  Kemshead,  16 

J.  &.  L.  92.  Beav.  344. 

(»)  Whttworth  v.Gaugain,  Cr.  (k)  Supra,  p.  58. 
&  Ph.  325  ;  3  Ha.  416  ;  1  Ph. 


1  In  some  States  there  are  statutes  providing  that  where  a  party 
to  a  civil  action  shows  a  probable  right  to  the  property  which  is  the 
subject  of  the  action,  a  receiver  will,  under  certain  circumstances,  be 
appointed.  This  provision  in  the  New  York  Code  of  Procedure  has 
been  held  to  apply  to  actions  to  recover  the  possession  of  real  estate  ; 
Ireland  v.  Nichols,  37  How.  Pr.  R.  222.  In  this  case  the  previous 
decisions  of  Thompson  v.  Sherrard,  12  Abb.  Pr.  R.  427,  35  Barb. 
593,  and  The  People  v.  The  Mayor  of  New  York,  10  Abb.  Pr.  R.  Ill, 
were  not  approved.  See  also  p.  9,  ante,  note  1,  as  to  the  Iowa  and 
California  statutes  on  this  subject. 


CHAPTER  III. 

OVER  WHAT  PROPERTY  A  RECEIVER  MAY  BE  APPOINTED. 

A  receiver  may  be  appointed  of  the  rents  and  profits 
of  real  estate,  and  also  of  all  personal  estate  which 
may  be  taken  in  execution  at  law.(a)1  In  all  cases 
where  execution  may  be  had  at  law  by  writ  of  Ji.  fa.  or 
elegit,  it  is  competent  to  a  court  of  equity  to  grant  a 
receiver.(6)  The  appointment  of  a  receiver  is  not 
limited  to  such  property  as  may  be  taken  in  execution 
at  law,  but  extends  to  whatever  is  considered  in  equity 
as  assets.(e) 

Salaries, &c— There  cannot  be  a  receiver  of  the  pay 
or  halt-pay  of  officers  in  the  army  or  navy,  for  the 
assignment  of  such  moneys  is  void  upon  the  grounds  of 
public  policy. (</)  Nor  can  there  be  a  receiver  of  the 
salary  of  a  person  in  the  civil  service,  at  least  where 
there  is  no  permanent  fund  for  the  payment  of  it,  but 

(a)  1  Sw.  83;2Sw.  L32.    See  over    a    rent-charge,     Wise    v. 

as  to  a  receiver  being  appointed  Beresford,  '.'<  Dr.  A-  War.  27G  ; 

over  a  newspaper,    Chaplain  v.  Cuilen  v.  Dean,  frc,  of  Killaloc, 

Young,  6  1-.  T.  N.  S.  T,  ■  Kelly  2  lr.  Oh.  133. 

v.  Hutton,  IT  W.  R.  425  [Sloan  {!>)  1  Sw.  83 ;  2  Sw.  L32. 

v.    Moore,    '.'<~    Penna.    St.    II.  (r)  Blanehanl  v.  Cawthome, 

217J;    Over    tithes.    Lumber;/   v.     4  Sim.  572. 

Helaham,    l    lr.  Ch.  033;  and        (d)  See  2  Beav.  549. 

1  Sec  Hudson  v.  PUts,  11  Paige,  0.  E.  183. 


OVER   WHAT    A    RECEIVER   MAY    BE   APPOINTED.      129 

a  sum  is  annually  voted  by  Parliament  for  the  pur- 
pose.^)1 The  salaries  of  officers  in  the  public  service, 
indeed,  do  not  appear  under  any  circumstances  to  be 
assignable,  where  the  payment  is  to  enable  the  grantee 
to  perform  future  duties,  and  the  emoluments  of  the 
office  are  considered  necessary  to  the  due  discharge  of 
the  duties.(/)  There  may  be  a  receiver  of  the  office 
of  Master  Forester  of  a  Royal  Forest.(^)  In  Palmer 
v.  Vaughan,(h)2  the  profits  of  an  office  of  clerk  of  the 
peace  having  been  assigned  for  the  benefit  of  creditors, 
a  receiver  was  appointed  pending  the  question  as  to 
the  validity  of  the  assignment.3 

(e)   Cooper  v.  Reilly,  2  Sim.     Moo.  28  ;  Hill  v.  Paul,  8  CI.  & 
564;   1    E.    &    M.    560;  see   2     Fin.  307. 
Beav.  550.  (g)  Blanchard  v.  Caivthome, 

(/)    See   Palmer  v.   Bate,  6    4  Sim.  566. 

(7i)  3  Sw.  173. 

1  In  Stone  v.  Wetmore,  42  Georgia,  601,  the  court  refused  to 
appoint  a  receiver  pending  a  controversy,  under  a  quo  warranto, 
between  one  in  possession  of  a  public  office  (that  of  ordinary)  and  a 
claimant  thereto. 

2  In  Tappan  v.  Grey,  9  Paige,  0.  R.  507,  a  flour  inspector  had 
been  illegally  appointed  by  the  Governor  of  New  York  during  the 
recess  of  the  Senate,  and  was  in  the  actual  discharge  of  the  duties 
of  the  office.  The  former  inspector  filed  a  bill  claiming  the  right  to 
hold  over  until  a  successor  was  duly  appointed  by  the  Governor  with 
the  consent  of  the  Senate,  and  praying  that  a  receiver  might  be  ap- 
pointed. It  was  held  that  the  court  had  no  jurisdiction  to  appoint  a 
receiver  to  discharge  the  duties  of  the  office  until  the  rights  of  the 
parties  could  be  legally  determined,  or  to  receive  the  fees  and  emolu- 
ments of  the  office  in  the  mean  time. 

3  In  Pennsylvania,  in  cases  of  contested  elections  in  Philadelphia 
County,  the  Court  of  Common  Pleas  is  directed,  upon  the  applica- 
tion of  any  citizen,  to  appoint  a  receiver  to  take  the  fees  and  emolu- 
ments of  the  office.     Purdon's  Digest,  586,  \  261. 

9 


130  OVER   WHAT    A    RECEIVER 

Pensions.— A  receiver  will  be  appointed  over  pensions 
which  may  be  lawfully  assigned. (0  There  may  be  a 
receiver  of  a  government  pension  for  past  services.(Z;) 
There  cannot,  however,  be  a  receiver  of  a  pension 
granted  as  well  to  support  the  grantee  in  the  perform- 
ance of  future  duties  as  for  past  services.(?) 

Heirlooms.— A  receiver  will  be  appointed  of  heir- 
looms or  of  articles  specifically  bequeathed  by  will.(m) 

Rates,  Tolls,  &e.— There  can  be  no  receiver  of  rates 
which  are  to  be  assessed  at  a  future  period,  for  until 
the  assessment  there  is  nothing  to  collect.(n)  The  case 
of  tolls  is  different  from  the  case  of  rates.  Tolls  being 
a  fixed  payment  and  in  the  nature  of  a  rent,  there 
may  be  a  receiver  of  the  tolls  of  turnpike  roads,  or 
of  canal  or  railway,  dock  or  market  companies. (o)1 
The  appointment  of  a  receiver  of  a  public  undertaking 
which  is  carried  on  by  trustees  or  rather  empowered 
by  statute,  does  not  supersede  the  powers  of  the  act  or 

(t)  Healdv.  Hay,  3  Giff.  467.  11     Ha.    251;    per    Lord     St. 

(A)  Noad  v.  Backhouse,  2  Y.  Leonards. 
&  C.  C.  C.  529.  (o)  Knappv.  Williams,  4Ves. 

(I)  Davis   v.  Duke  of  Marl-  429  n.  ;  Dumville  v.  Ashbrook, 

borough,  1   Sw.    74,    79;   see   2  3  Russ.  98  n. ;  Drewry  v.  Barnes, 

Beav.  549.  3  Russ.  105  ;  Potts  v.   Warwick 

(m)   Earl  of  Shaftesbury   v.  and   Birmingham    Canal    Co., 

Duke  of  Marlborough,  Set.  on  Kay,  142  ;  Ames  v.  Birkenhead 

Deer.  1025.  Docks,  20  Beav.  332  ;  De  Winton 

(n)  Drewry  v.  Barnes,  3  Russ.  v.    Mayor    fyc.    of    Brecon,    26 

94  ;  but  see  Gibbons  v.  Fletcher,  Beav.  533  ;  Lord  Creioe  v.  Edle- 

ston,  1  D.  &  J.  93. 
— * _ — — . — . — 

1  See  ante,  p.  67,  note  1. 


MAY   BE   APPOINTED.  131 

make  the  future  management  illegal,  as  being  carried 
on  by  unauthorized  persons.  The  management  re- 
mains in  the  hands  of  the  trustees  or  others  empow- 
ered by  statute  to  manage  it;  a  receiver  does  no 
more  than  take  the  rates,  tolls,  and  taxes,  and  pay 
the  expenses  of  the  undertaking  and  the  interest  of 
the  mortgages,  and  then  pay  the  surplus  into  court.(^>) 

Ships— A  receiver  may  be  appointed  of  the  freight 
of  a  ship(g)  and  of  the  machinery  of  a  steam  vessel.(r) 

In  a  case  where  the  legal  title  to  a  ship  was  in  ques- 
tion, and  the  plaintiff  had  no  equitable  as  distinct 
from  a  legal  title,  a  receiver  was  refused,  but  an  order 
was  made  by  which  the  legal  proceedings  for  ascer- 
taining the  title  were  accelerated,  and  the  court  took 
possession  of  the  ship,  giving  each  party  liberty  to 
apply  for  the  possession  and  use  upon  giving  security 
to  deal  with  her  as  the  court  should  direct.(s) 

Business  of  Solicitor.— A  receiver  may  be  appointed 
of  the  profits  of  the  business  of  a  solicitor.^) 

Fellowships,  &c— The  question  as  to  whether  a  re- 
ceiver can  be  appointed  of  the  profits  arising  from  the 
fellowship  of  a  college  has  been  the  subject  of  conflict- 
ing decisions.     In  one  case,(w)  a  motion  for  a  receiver 

(p)  Ames  v.  Birkenhead  (s)  Ridgivay  v.  Roberts,  4  Ha. 
Docks,  20  Beav.  350.  106. 

(q)  Set.  on  Deer.  1035.  {t)   Candler  v.   Candler,  Jac. 

(r)   Brenan  v.  Preston,  2  D.    225. 
M.  &  G.  831 ;  10  Ha.  334  {u)    Berkley  v.   King's    Col- 

lege, 10  Beav.  602. 


132  OVER   WHAT    A    RECEIVER 

was  refused  with  costs.  But  in  a  later  case,(#)  the 
court  held  that  there  might  be  a  receiver  both  of  past 
and  future  appropriations  in  respect  of  the  profits  of  a 
fellowship,  the  duties  being  so  light  that  no  questions 
of  public  policy  could  interfere  with  the  validity  of 
the  assignment.  So  also  a  receiver  has  been  appointed 
of  the  profits  of  a  canonry  of  a  collegiate  church,  to 
which  no  cure  of  souls  belonged,  but  only  the  duty  of 
a  certain  residence  and  of  attendance  on  divine  service, 
the  performance  of  which  duty  by  the  canon  was  of  no 
benefit  to  the  public.(?/) 

Ecclesiastical  Benefices.— There  cannot  be  a  receiver 
of  the  profits  of  an  ecclesiastical  benefice,  for  a  beneficed 
clergyman  is  prohibited  by  the  statute  13  Eliz.,  c.  20, 
from  charging  the  fruits  of  his  living.(z)  The  statute 
of  Elizabeth  was  repealed  by  the  statute  43  Geo.  III.,  c. 
84,  which  was  passed  in  the  year  1803,  and  so  the  law 
remained  till  the  year  1817,  when  by  the  statute  57 
Geo.  III.,  c.  99,  the  charging  ecclesiastical  benefices  was 
again  prohibited,  and  the  statute  of  Elizabeth  was  re- 
vived ;  so  that  between  the  years  1803  and  1817  there 
was  no  law  prohibiting  a  clergyman  from  charging  his 
ecclesiastical  benefice  ;(a)  and  a  receiver  was  accord- 
ingly, on  several  occasions  in  cases  arising  between 

(x)  Feistel  v.  King's  College,  (z)  Haxokins  v.  Gathercole,  6 

10  Beav.  491.  D.  M.  &  G.  1 ;  see  Long  v.  Storie, 

(y)    Grenfell    v.    Dean    and  3  DeG.  &  Sm.  309. 

Canons   of    Windsor,  2   Beav.  (a)  Metcalfe  v.  Archbishop  of 

544.  York,  1  M.  &  C.  553. 


MAY    BE    APPOINTED.  133 

those  years,  appointed  over  an  ecclesiastical  benefice.(6) 
The  policy  of  the  statute  13  Eliz.,  c.  20,  which  was  re- 
vived by  57  Geo.  III.,  c.  99,  has  not  been  in  any  way 
affected  by  1  &  2  Vict.,  c.  110.  A  judgment  does 
not  create  a  charge  upon  a  benefice  giving  a  right  to  a 
receiver  under  1  &  2  Vict.,  c.  110.  The  judgment 
creditor  of  a  beneficed  clergyman  is  prevented  by  the 
statute  of  Elizabeth  from  suing  in  equity,  to  have  his 
judgment  made  a  charge  under  statute  1  &  2  Vict.,  c. 
110,  and  cannot  have  a  receiver  appointed  over  the 
profits  of  the  benefice.(c) 

Property  in  Foreign  Parts.— It  is  not  necessary,  in 
order  to  authorize  the  court  to  appoint  a  receiver,  that 
the  property  in  respect  of  which  he  is  to  be  appointed 
should  be  in  England,  or  indeed  in  any  of  her  Majesty's 
dominions.^)  Thus,  persons  have  been  appointed  to 
receive  the  rents  and  profits  of  real  estates,  and  to  con- 
vert, get  in,  and  remit  the  proceeds  of  property  and 
assets,  when  such  property  is  situate  in  Ireland,(e)  in 
the   West    Indies,(/)   in    India,(#)   in   Canada,(A)    in 

(b)  Silver  v.  Bishop  of  Nor-  gal,  8  Bligh,  344;  Set.  on  Dec. 
wich,  3  Sw.  112  n. ;  White  v.  1007 ;  see  2  &  3  Will.  IV.,  c.  33 ;  4 
Bishop  of  Peterborough,  3  Sw.     &  5  Will.  IV.,  c.  82. 

109;  Metcalfe  v.  Archbishop  of  (/)  Bunbury  v.  Bunbury,  1 

York,  1  M.  &  C.  553 ;  Courand  Beav.    336 ;    Barkley   v.    Lord 

v.  Hanmer,  9  Beav.  3 ;  Set.  on  Reay,  2  Ha.  308  ;  Faulkner  v. 

Deer.  1029.  Daniel,  3  Ha.  204. 

(c)  Hawkins  v.  Gathercole,  6  (g)  Logan  v. Princess  of  Coorg, 
D.  M.  &  G.  1 ;  Bates  v.  Brothers,  Set.  on  Dec.  1038 ;  Keys  v.  Keys, 
2  Sm.  &  G.  509.  lb. ;  1  Beav.  425. 

(d)  Houlditch  v.  Lord  Done-  (h)  Tylee  v.  Tylee,  Set.  on 
gal,  8  Bligh,  344.  Deer.  1039. 

(e)  Hoidditch  v.  Lord  Done- 


134:  OVER   WHAT    A    RECEIVER 

China,(0  in  Italy,(&)  in  America,(7)  in  New  South 
"Wales,(m)  in  Jersey.(n)  Although  the  court  has  no 
power  of  sending  its  officers  to  places  beyond  the  juris- 
diction to  enforce  its  orders  and  decrees,  a  party  to  the 
cause  who  resists  them  will  be  guilty  of  contempt.(o) 
A  man  will  not,  however,  be  appointed  receiver  of  an 
estate  which  is  out  of  the  jurisdiction,  unless  he  be 
within  the  reach  of  the  court,  or  have  submitted  him- 
self to,  or  be  amenable  to,  its  jurisdiction. (p) 

The  course  which  the  court  usually  adopts  where  an 
estate  is  in  a  foreign  country  or  out  of  the  jurisdiction, 
is  to  appoint  a  receiver  in  this  country,  with  power,  if 
it  he  found  expedient,  to  appoint  an  agent,  with  the 
approbation  of  the  judge,  in  the  country  where  the 
estate  is  situate,  to  collect  the  estate  and  remit  the 
same  to  the  receiver  in  this  country.^)  The  receiver 
or  his  agent  will  recover  possession  of  the  estate 
according  to  the  laws  of  the  country  in  which  it  is 
found. (r)     The  receiver  will,  when  necessary,  be  em- 


(*)  Hodson  v.  Watson,  Set.  on  ford,  5  L.  J.  Ch.  N.  S.  60  ;  Houl- 

Decr.  1038.  ditch  v.  Donegal,  8  Bligh.  344 ; 

(k)  Hinton  v.  Galli,  24  L.  J.  Carron  Iron  Co.  v.  Maclaren,  5 

Ch.  121 ;  2  Eq.  Rep.  479  ;  Drewry  H.  L.  436. 

v.  Darwin,  Set.  on  Deer.  1039.  (q)  —  v.  Lindsay,  15  Ves.  91 

(I)  Hanson  v.  Walker,  Set.  on  Keys    v.   Keys,    1    Beav.    425 

Deer.  1039.  Smith  v.  Smith,  10  Ha.  App.  71 

(m)  Set.  on  Deer.  1038.  Hinton  v.   Galli,  24  L.  J.  Ch. 

(n)  Smith   v.  Smith,  10  Ha.  211;   2  Eq.  Rep.  479;    Set.  on 

App.  71.  Deer.  1039. 

(o)  Langford  v.  Langford,  5  (r)   Smith  v.   Smith,  10    JIa. 

L.  J.  Ch.  N.  S.  60.  App.  71. 

(p)   See   Langford  v.   Lang- 


MAY    BE   APPOINTED.  135 

powered  to  sell  lauds  abroad,  according  to  a  scheme 
approved  by  the  judge.(s)1 

(s)   Tylee  v.  Tylee,  Set.  on  Deer.  1039. 

1  It  has  recently  been  held,  in  the  Supreme  Court  of  New  York, 
that  the  appointment,  in  that  State,  of  a  receiver  of  a  mining  com- 
pany whose  property  consisted  entirely  of  real  estate  situated  in 
another  State,  conferred  no  title.  Sirnpkins  v.  The  Smith  §-  Par- 
melee  Gold  Co.,  50  How.  Pr.  R.  56. 


CHAPTER  IV. 

WHO  MAY  BE  APPOINTED  RECEIVERS. 

Party  to  Suit.— A  receiver  should,  as  a  general  rule,  be 
a  person  wholly  disinterested  in  the  subject-matter  of 
the  suit,  but  it  is  competent  to  the  court,  upon  the 
consent  of  the  parties,  to  appoint  as  receiver  a  person 
who  is  mixed  up  in  the  subject-matter  of  the  suit,  if 
it  is  satisfied  that  the  appointment  would  be  attended 
with  benefit  to  the  estate.  A  tenant  for  life  has  accord- 
ingly been  appointed  a  receiver.(a)  So  also  in  a  suit  to 
dissolve  a  partnership,  one  of  the  partners  was  ap- 
pointed receiver.^)1  So  also  a  retired  partner  who  had 
advanced  all  the  capital  and  was  liable  for  the  partner- 
ship debts,  was  appointed  receiver.(c)  A  party  to  the 
suit  will  not  be  appointed  a  receiver,  unless  on  his 
undertaking  to  act  without  salary. (d) 

When  a  party  to  the  cause  has  been  appointed  re- 
ceiver, he  does  not  thereby  lose  his  privilege  as  such 
party  in  the  cause. (e)2 

(a)  Powys  v.Blagrave,  18  Jur.  (d)  Wilson  v.  Greenwood,  1 
463.  Sw.  471,  483;  Blakeney  v.  Du- 

(b)  Wilson  v.  Greenwood,  1  faur,  15  Beav.  40,  44;  Hoffman 
Sw.  471,  483;  Blakeney  v.  Du-  v.  Duncan,  18  Jur.  69;  Powys 

faur,  15  Beav.  40,  44.  v.  Blagrave,  lb.  463. 

(c)  Hoffman  v.  Duncan,  18  (e)  Scott  v.  Platel,  2  Ph.  229. 
Jur.  69. 


1  Sargant  v.  Read,  L.  R.  1  Oh.  D.  600. 

2  Of  course,  if  a  party  to  a  cause  accepts  the  position  of  receiver, 
his  interest  must  not  be  permitted  to  interfere  with  his  duties  as 
receiver.     See  Bolles  v.  Duff,  54  Barbour,  216. 


WHO   MAT   BE   APPOINTED   RECEIVERS.  137 

Trustee.— It  is  not  according  to  the  course  of  the 
court  to  appoint  a  trustee  receiver.  A  person  on  whom 
the  character  and  duties  of  a  trustee  are  substantially 
imposed,  and  who  is  directly  connected  with  the  man- 
agement of  the  estate,  cannot  in  general  be  appointed 
a  receiver.(/)  The  court  on  appointing  a  receiver 
looks  to  the  trustee  to  see  that  the  receiver  is  doing 
his  duty.  The  cestui  que  trust,  if  he  is  to  have  a  re- 
ceiver, is  entitled  to  the  superintendence  of  the  trustee 
as  a  check.(^)  The  two  characters  of  trustee  and  re- 
ceiver are  in  fact  incompatible,  and  in  addition  to  this, 
the  appointment  of  a  trustee  as  receiver  would  be  in 
violation  of  the  fundamental  rule  of  equity  that  a 
trustee  cannot  derive  any  benefit  from  the  discharge 
of  his  duty  as  trustee.(A)  The  court  will  even  remove 
a  receiver  whose  private  interests  are  in  conflict  with 
his  duties,  though  his  acts  have  for  the  most  part  been 
for  the  general  good  of  the  property,  and  though  a 
majority,  both  in  number  and  value,  of  the  incum- 
brancers, desire  that  he  should  be  retained. (i)  The 
rule  that  a  trustee  cannot  be  a  receiver  applies  whether 
he  is  sole  trustee  or  is  acting  jointly  with  others.(&) 

In  special  cases,  however,  where  the  appointment  of 
a  trustee  as  receiver  would  be  beneficial  to  the  estate, 
as  when  he  has  a  peculiar  knowledge  of  the  estate,  or 
no  one  else  can  be  found  who  will  act  with  the  same 


(/)  Sutton  v.  Jones,  15  Yes.        (h)  lb. 
587.  (i)  Fripp  v.  Chard  Raihvay, 

(g)  Anon.,  3  Ves.  515 ;  SyTces  11  Ha.  241,  260  ;  see   Gookes  v. 

v.  Hastings,  11  Ves.  363 ;  Sutton  Cookes,  2  D.  J.  &  S.  530. 
v.  Jones,  15  Yes.  587.  {k)  —  v.  Jolland,  8  Yes.  72. 


138      "WHO  MAY  BE  APPOINTED  RECEIVERS. 

benefit  to  the  estate,  the  court  will  make  the  appoint- 
ment. But  the  trustee  must  engage  to  act  as  receiver 
without  emolument.(7)  Upon  this  undertaking  a  testa- 
mentary guardian  and  executor,(m)  and  a  tenant  for 
life  who  was  also  a  trustee,(??)  has  been  appointed  a 
receiver. 

In  Ames  v.  Birkenhead  Docks  fa)  the  chairman  of  the 
trustees  of  a  dock  company  was  appointed  receiver  of 
the  tolls  of  the  company.  So  also  in  Polls  v.  Warwick 
and  Birmingham  Canal  Company  fa))  one  of  the  com- 
mittee of  management  of  a  company  was  appointed 
receiver  of  the  tolls  of  the  company.1 

(I)  Sykes  v.  Hastings,  1L  Yes.  (n)  Powys  v.  Blagrave,  18  Jur. 

363 ;  Sutton  v.  Jones,  15  Ves.  463. 

584.  (o)  20  Beav.  232. 

(in)  Gardner  v.  Blaine,  1  Ha.  ( p)  Kay,  143. 
381. 

1  It  has  been  decided  in  New  York,  in  proceedings  under  the 
statute  of  that  State  against  insolvent  corporations  at  the  relation 
of  the  Attorney-General,  that  an  officer  of  the  corporation  is  not  a 
proper  person  to  be  appointed  receiver  of  its  assets.  The  case  of  the 
Franklin  Bank,  cited  in  The  Attorney- General  v.  The  Bank  of 
Columbia,  1  Paige,  C.  R.  511-517.  ..."  Public  policy,"  said  the 
court,  in  the  case  last  cited,  "  requires  that  the  directors  shall  under- 
stand distinctly  that  if  they  so  manage  the  concerns  of  the  institu- 
tion as  to  produce  insolvency,  the  property  and  effects  of  the  institu- 
tion will  be  taken  from  them  entirely,  and  will  be  placed  in  the 
hands  of  those  who  will  investigate  their  conduct  fearlessly  and  im- 
partially." But  the  same  learned  judge  also  held,  in  a  subsequent 
case,  that  the  same  rule  did  not  apply  to  proceedings  under  the 
statute  relative  to  voluntary  dissolutions,  the  appointment  of  the 
officers  of  the  institution  being  expressly  authorized  by  the  act.  In 
the  matter  of  the  Eagle  Iron  Works,  8  Paige,  C.  R.  385;  3  Ed- 
wards, C.  R.  385.  In  The  People  v.  The  Third  Avenue  Savings 
Bank,  50  How.  Pr.  R.  22  ;  it  was  held  that  the  secretary  of  an 
insolvent  savings  bank  should  not  be  appointed  receiver. 


WHO   MAY   BE   APPOINTED   RECEIVERS.  139 

"Where  indeed  a  trustee  offers  to  act  as  receiver  with- 
out salary,  he  will  be  allowed  to  propose  himself,  but 
the  judge  is  not  bound  to  accept  him.(g')  The  court 
will  not  appoint  a  trustee  as  receiver,  even  although 
he  agrees  to  act  without  emolument,  if  he  is  the  person 
that  ought  to  check  the  receiver  for  the  benefit  of  the 
parties  interested. (r) 

Under  very  special  circumstances  a  trustee  may  be 
appointed  receiver  with  a  salary.  Where,  for  instance, 
a  testator  had  appointed  as  trustee  a  person  who  for 
many  years  had  been  paid  receiver  and  manager  of  his 
estate,  the  tenant  for  life  being  an  infant,  he  was  con- 
tinued a  receiver  with  a  salary. (s) 

The  objection  to  the  appointment  as  receiver  of  a 
trustee  who  has  active  duties  to  perform  in  relation  to 
the  estate,  does  not  apply  to  the  case  of  a  trustee  to 
preserve  contingent  remainders,  or  with  powers  ot 
sale  and  exchange  which  cannot  be  immediately  ex- 
ercised.^) A  trustee  with  power  to  lease  cannot,  how- 
ever, be  a  receiver.(w) 

Party  in  a  Fiduciary  Position,  &c— The  rule  that  the 
court  will  not  sanction  the  appointment  as  receiver  of 
a  person  whose  duty  it  is  to  check  and  control  the 
receiver  is  extended  to  other  persons  besides  trustees.(#) 


(q)  Banks  v.  Banks,  14  Jur.  (t)  Sutton  v.  Jones,  15  Ves. 

659.  587. 

(r)  Sykes  v.  Hastings,  11  Yes.  (u)  lb. 

363;  Sutton  v.  Jones,  15  Ves.  584.  (x)  See  Cookes  v.  Cookes,  2  D. 

(s)  Bury  v.  Newport,  23  Beav.  J.  &  S.  530. 
30. 


140      WHO  MAY  BE  APPOINTED  RECEIVERS. 

Thus  it  has  been  held,  that,  as  it  is  the  duty  of  the 
next  friend  of  an  infant  to  watch  the  accounts  and 
check  the  conduct  of  a  receiver  of  the  infant's  estate, 
the  two  characters  are  incompatible  with  each  other  ;(?/) 
and  in  Taylor  v.  Oldham,(z)  Lord  Eldon  held  that  the 
son  of  a  next  friend  ought  not  to  be  receiver.  Upon 
similar  grounds  it  has  been  held  that  a  solicitor  in  the 
cause  cannot  be  appointed  receiver,  because  it  is  his 
duty  to  control  the  receiver's  accounts.(a) 

Nor  will  a  man  be  appointed  receiver  whose  posi- 
tion may  cause  difficulty  in  administering  justice.  A 
Master  of  Chancery,  accordingly,  was  disqualified  from 
being  appointed  a  receiver,  for,  being  an  officer  whose 
duty  it  was  to  pass  the  accounts  and  check  the  conduct 
of  a  receiver,  his  appointment  as  a  receiver  was  open  to 
objection  on  very  obvious  grounds.(7>)1  The  same  reason 
which  disqualified  a  Master  in  Chancery  from  being 
receiver  applies  to  the  appointment  of  a  person  who 
acts  as  solicitor  under  a  commission  of  lunacy. (c) 
There  can  be  no  doubt  it  also  applies  to  the  chief  clerk 
of  a  judge.2 


(y)  Stone  v.  Wishart,  2  Madd.  {b)  Ex  parte  Fletcher,  6  Ves. 

64.  427. 

(z)  Jac.  527,  529.  (c)  Ex  parte  Pincke,  2  Mer. 

(a)   Garland  v.   Garland,   2  452. 
Ves.  Jr.  137  ;  Wilson  v.  Poe,  1 
Hog.  322. 

1  The  same  point  was  decided  in  Benneson  v.  Bill,  62  111.  408. 

2  An  official  liquidator,  appointed  upon  the  voluntary  winding  up 
of  a  company,  may  be  appointed  receiver.  Perry  v.  Oriental  Hotels 
Company,  L.  R.  5  Chan.  A  pp.  420. 


WHO   MAY    BE    APPOINTED    RECEIVERS.  141 

Solicitor.— Though  a  solicitor  in  the  cause,^)1  or  a 
solicitor  under  a  commission  of  lunacy  ,(e)  cannot  be 
appointed  receiver  of  the  estate  in  which  they  are 
retained  as  solicitors,  there  is  no  objection  in  general 
to  the  appointment  of  a  solicitor  as  receiver.(/)  In 
Bagot  v.  Bagot,(g)  the  solicitor  of  a  married  woman  was 
on  her  application  appointed  receiver  of  her  separate 
estate,  although  a  strong  affidavit  was  made  by  the 
husband  showing  the  unfitness  of  the  solicitor  for  the 
office. 

Considerations  looked  to  in  making  the  Appointment. — 
The  person  appointed  as  receiver  should  be  a  person 

(d)  Garland  v.  Garland,  2  (/)  See  Wilson  v.  Poe,  1  Hog. 
Ves.  Jr.  137.  322  ;Della  Cainiea  v.  Hayward, 

(e)  Ex  parte  Pincke,  2  Mer.  McClell.  &  Y.  272. 
452.  {g)  2  Jur.  1063. 

1  This  rule  was  recognized  in  Baker  v.  Backus,  32  Illinois,  79-95. 
"There  was  a  fatal  objection,"  said  the  court  "to  the  person  ap- 
pointed receiver.  He  was  not  disinterested  ;  he  was  the  legel  adviser 
of  the  complainant,  and  framed  the  bill ;  he  was  the  legal  adviser  of 
the  company,  and  he  was  the  largest  single  creditor — all  these  dis- 
qualified him."  But  in  the  Case  of  Abraham  Powell,  an  involuntary 
bankrupt  (in  the  U.  S.  District  Court  for  the  Eastern  District  of 
Pennsylvania),  the  solicitor  for  the  petitioning  creditors  was  ap- 
pointed a  temporary  receiver  of  the  estate.  This  case,  however,  is 
not  to  be  regarded  as  in  conflict  with  the  general  rule,  for  the  pro- 
perty of  the  bankrupt  had  previously  become  vested  in  assignees  for 
the  benefit  of  creditors  under  the  State  law,  and  the  duties  of  the 
receiver  (who  was  to  act  as  such  pending  the  election  of  an  assignee 
in  bankruptcy)  were  mainly,  if  not  altogether,  supervisory.  This 
appointmeut  was  also  in  accordance  with  the  rule  which  permits  the 
creditor's  attorney  to  act  as  assignee  in  bankruptcy.  See  Ex  parte 
Clairmont,  1  Bank.  Reg.  42 ;  Ex  parte  Lawson,  1  Gaz.  132  ;  Ex 
parte  Barrett,  1  Chicago  Leg.  News,  202. 


142  WHO   MAY    BE    APPOINTED   RECEIVERS. 

who,  consistently  with  his  professional  and  other  pur- 
suits, can  spare  sufficient  time  for  the  duties  of  his 
office,  and  the  court  will  attend  to  circumstances  tend- 
ing to  show  that  the  person  proposed  as  receiver  is 
unable  to  fulfil  this  condition.^)  In  a  case,  accor- 
dingly, where  a  man  proposed  as  receiver  was  both  a 
member  of  Parliament  and  a  practising  barrister,  and 
also  resided  at  a  very  considerable  distance  from  the 
estate,  the  court  held  that  these  circumstances,  though 
not  amounting  to  an  absolute  disqualification,  formed 
a  sufficient  ground  to  render  further  consideration  ad- 
visable.^") There  is  no  objection  to  the  appointment 
as  receiver  of  a  practising  barrister  not  being  a  mem- 
ber of  Parliament.^) 

Peer;  Member  of  Parliament.— The  court  will  not  ap- 
point as  receiver  a  person  whose  privileges  protect  him 
from  the  ordinary  remedies  which  it  may  become 
proper  to  enforce.^)  A  peer  accordingly  is  disquali- 
fied.^) Lord  Eldon  would  not  say  that  a  member  of 
Parliament  was  absolutely  disqualified,^)  but  the 
same  considerations  which  render  the  appointment  of 
a  peer  objectionable  would  seem  also  to  apply  to  the 
case  of  a  member  of  Parliament.(o) 

(h)    Wynne  v.  Lord  Neiobor-  (m)  lb. 

ough,  15  Ves.  284.  (n)    Wynne  v.  Lord  Neiubor- 

(*)  lb.  283.  ough,  15  Ves.  284. 

(Jfc)  lb.;  Garland  v.  Garland,  (o)  See  Long  Wellesley's  Case, 

2  Ves.  Jr.  137  ;  Wtlkins  v.   Wil-  2  K.  &  M.  G39  ;  Lechmere  Charl- 

liams,  3  Ves.  587.  ion's  Case,  2  M.  &  C.  31 G. 

(I)  Alt.  Gen.  v.  Gee,  2  V.  &  B. 
208. 


WHO   MAY   BE   APPOINTED   RECEIVERS.  143 

Accountant  to  Crown,  &c— A  person  who  is  under 
security  to  the  Crown,  as  the  receiver-general  of  a 
county,  cannot  be  appointed  a  receiver,  for  if  he  were 
to  be  indebted  to  the  Crown,  the  Crown  might  by  its 
prerogative  process  sweep  away  all  his  property,  and 
his  debt  to  the  estate  would  be  lost.Q))  Upon  the 
same  principle  it  might  be  held  that  any  person  who 
is  in  the  position  of  an  accountant  to  the  Crown  would 
be  objectionable.^) 

Mortgagee  of  West  India  Estate  appointed  Consignee. 
— The  mortgagee  of  a  West  Indian  estate  who  does 
not  take  possession  will  not  be  appointed  consignee 
unless  he  has  stipulated  for  the  advantage.  If  a  mort- 
gagee of  a  West  Indian  estate  has  not  a  contract  that 
he  shall  have  the  consignments,  he  cannot  have  any 
such  emoluments  from  the  estate.  If  it  were  allowed, 
the  second  mortgagee  would  move  for  a  receiver  and 
consignee,  and  the  first  mortgagee  would  be  appointed, 
and  thus  circuitously  obtain  an  advantage  which  he 
could  not  have  obtained  directly.(r) 

(p)  Att.-Gen.  v.  Day,  2  Madd.  (?•)  Cox  v.  Champneys,  Jac. 
254.  576 ;   Ex  parte  Pincke,  2  Mer. 

(q)  Dan.  Ch.  Pr.  1570.  452. 


CHAPTER  V. 

MODE  OF  THE  APPOINTMENT  OP  A  RECEIVER. 

Receiver  not  appointed  unless  in  a  Suit.— The  court 
has  no  jurisdiction  to  appoint  a  receiver  unless  a  suit 
is  pending.(a)1  The  case  of  infants  forms  no  exception 
to  the  rule.(6)  In  some  cases  the  same  person  has  heen 
appointed  guardian  and  receiver  of  the  person  and 
estate  of  an  infant  on  petition  or  summons  in  cham- 
bers, without  suit ;  and  in  other  cases  separate  persons 
have  been  appointed  guardian  and  receiver  on  sum- 
mons in  chambers.(c)     The  more  usual   course,  how- 


(a)  In  cases  coming  within  the 
Railway  Companies  Act,  1867, 
30  &  31  Vict.,  c.  127,  a  receiver 
may  be  appointed  on  petition, 
supra,  p.  76.  The  Court  of  Chan- 
cery in  Ireland  may  appoint  a 
receiver  on  summary  petition  by 
a  judgment  creditor.  Under  the 
Acts  5  &  6  Will.  IV.,  c.  55,  ss. 
31,  32,  and  3  &  4  Vict,  c.  105,  ss. 
21,  23,  24,  the  jurisdiction  of  the 
Court  of  Chancery  in  Ireland  to 
appoint  a  receiver  on  summary 
petition  by  a  judgment  creditor 
was  very  extensive.  See  Ileilly 
on  Petitions.  It  has,  however, 
been  much  restricted  by  more  re- 


cent legislation,  12  &  13  Vict.,  c. 
95  ;  13  &  14  Vict.,  c.  29 ;  19  &  20 
Vict.,  c.  77,  s.  3.  See  Eeilly  on 
Summ.  Petit.  374  et  seq.  [Baker 
v.  Backus,  32  Illinois  79-95] 

(6)  Ex  parte  Whiff  eld,  2  Atk. 
315 ;  Ex  parte  Mount/ord,  15 
Ves.  445,  449. 

(c)  Re  Leaning,  20  L.  J.  Ch. 
550  ;  17  L.  T.  231;  Re  Reynolds, 
19  L.  T.  311 ;  Re  Gascoyne,  20 
L.  J.  Ch.  551 ;  Set.  on  Deer.  705. 
The  Lord  Chancellor  of  Ireland 
has  power  under  5  &  6  Will.  IV., 
c.  78,  8.  7,  to  appoint  a  receiver 
over  the  estate  of  a  minor  upon 
petition,  Be  Goode,  1  Ir.  Ch.  256. 


'  In  Newman  v.  Hammond,  46  Indiana,  119,  it  was  held  that, 
under  the  Indiana  statute,  the  court  would  not  appoint  a  receiver 
in  vacation. 


MODE    OF   APPOINTMENT.  145 

ever,  is  to  appoint  a  guardian  of  the  person  and  estate 
without  a  receiver.(^)  The  case  of  lunatics  is  the  only 
exception  to  the  rule  that  a  receiver  will  not  be  ap- 
pointed unless  a  suit  is  pending.  In  the  case  of 
lunatics  a  receiver  may  be  appointed  on  petition  with- 
out bill  filed. (<?)  The  court  has  no  jurisdiction  to  ap- 
point a  receiver  in  cases  of  bankruptcy,  except  on  bill 
filed.(Z)1 

A  receiver  may  be  appointed  after  an  administration 
decree  in  a  suit  commenced  by  summons.^) 

Where  the  Application  should  be  made.— In  a  suit 
commenced  by  summons,  or  where  the  appointment 
is  by  consent,  the  application  for  the  appointment  of  a 
receiver  should  be  made  in  chambers.(A)  If  the  appli- 
cation is  in  a  cause,  and  it  is  the  first  application  in 
the  cause  for  the  appointment  of  a  receiver  in  the 
place  of  a  person  already  in  possession,  it  must  be 
made  in  open  court,  and  cannot  be  made  in  chambers; 
but  where  the  application  is  not  an  original  applica- 
tion for  the  appointment  of  a  receiver  in  the  cause,  but 
is  only  an  application  to  supply  the  place  of  a  receiver 
already  appointed,  it  should  be  made  in  chambers.(z) 

(d)  Set,  on  Deer.  705.  Jur.    N.    S.    227  ;    Brooker    v. 

(e)  1    Atk.   488 ;    Ex   Parte     Brooker,  3  Sm.  &  G.  475. 
Whitfield,  2  Atk.  315;  Ex  parte         (h)    Blarkborough  v.  Raven- 

Mountford,  15  Yes.  445,  449.  hill;  16  Jur.  1085  ;  22  L.  J.  Ch. 

(/)  Ex  parte  Tupper,lB,ose,     108. 
179.  (*")    Grote  v.  Bing,  20  L.  T. 

{g)    Be   Byxvater's   Estate,   1     124;  1  W.  R.  80  ;  9  Ha.  App.  50; 

Booth  v.  Coidton,  16  W.  R.  685. 

1  See  ante,  pp.  110,  111,  112. 
10 


146  MODE   OF    APPOINTMENT. 

Appointment  made  on  Motion  or  Petition.— The  appli- 
cation for  a  receiver  is  usually  made  on  motion,  but 
the  appointment  may  be  obtained  on  petition. (k)  If 
the  application  is  made  by  the  defendant,  a  petition 
should  be  made  use  of.(/) 

It  was  formerly  the  practice  not  to  appoint  a  re- 
ceiver before  answer,  but  the  old  rule  not  to  appoint  a 
receiver  before  answer  was  broken  through  by  Lord 
Kenyon  in  Vann  v.  Barnett  ;(m)  and  it  is  now  well  set- 
tled that  a  receiver  may  be  appointed  before  answer,  if 
a  sufficient  case  for  the  appointment  be  shown  by  the 
affidavits.^?)1 

(7c)  See  Bainbridge  v.  Blair,  ford,  18    Yes.    283 ;    Scott    v. 

4  L.  J.  Ch.  N.  S.  207.  Becker,  4  Pri.  346 ;  Metcalfe  v. 

(I)  Hiles  v.  Moore,  15  Beav.  Pulvertoft,  1  V.  &  B.  180,  183; 

175;  see   Barloio   v.    Gains,   8  Aberdeen  v.  Chitty,  3  Y.  &  C. 

Beav.  329.  379  ;  Woodyatt  v.  Seeley,  8  Sim. 

(m)  2  Bro.  C.  C.  158 ;  see  Jer-  183,  189;  Pitcher  v.  Helliar,  2 

ms  v.  White,  6  Yes.  738.  Dick.  580;  Maguire  v.  Allen,  1 

(n)  Middleton  v.  Dodsiuell,  13  Ball  &  B.  75- 
Yes.  266;   Duckworth  v.   Traf- 

1  "  A  receiver,"  say  the  court  in  Williamson  v.  Wilson.  1  Bland, 
422,  "  is  never  appointed  before  answer,  but  upon  very  strong  special 
ground  supported  by  affidavit,  or,  as  is  the  practice  in  this  State 
(Maryland),  on  a  bill  sworn  to  by  the  complainant,  or.  in  case  of  his 
not  being  in  the  State,  by  some  one  conversant  with  the  facts  stated. 
A  motion  to  rescind  an  appointment  is  always  heard  on  short  notice, 
and  a  receiver  is  in  no  case  permitted  to  take  charge  of  the  property 
without  having  first  given  bond  with  approved  surety."  See  also 
Bloodgood  v.  Clark,  \  Paige,  ('.  R.  577:  Simmons  v.  Henderson, 

I  Freeman  (Ch.),  500;  Bank  v. Schermerhorn,  7  Clarke,  C.  R.  214; 
Jones  v.  Dougherty,  10  Georgia,  281  ;  McDougald  v.  Dougherty. 

II  Georgia,  584;  Williams  v.  Jenkins,  11  Id.  597;  Johns  v.  Johns, 
'l'.',  [d.  31 ;  Hungerford  v.  Cushing,%  Wisconsin,  322 ;  Whitehead 
v.   Wooten,  43  Miss.  :>~r.\;  and  cases  cited  in  the  next  note. 


MODE    OF   APPOINTMENT.  147 

An  application  for  a  receiver  cannot,  except  under 
very  exceptional  circumstances,  be  made  without  no- 
tice.1 Notice  of  the  motion  or  summons,  as  the  case 
may  be,  must  be  served  on  the  party  against  whom 
the  motion  is  made.(o)  An  application,  ex  jJarte,  for  a 
receiver  before  appearance,  is  irregular,(p)  except  a  case 
of  great  urgency  be  made  to  appear.(g)  Leave  may  be 
had  in  cases  where  the  circumstances  are  urgent  to 
serve  the  defendant  with  notice  of  motion  for  a  receiver 
before  the  expiration  of  the  time  fixed  for  appearance. 
The  notice  of  the  motion  must  be  served  on  the  de- 
fendant personally ;(r)  and  the  fact  of   leave  having 

(o)  Pan.  Ch.  Pr.  1571.  T.  N.  S.    595  ;   see    Dickens  v. 

(p)     Buxton  v.    Monklwuse,     Harris,  14 L.  T.  N.  S.  98. 

Coop.  41 ;   Caillard  v.  Caillard,         (?•)  Hill  v.  Rimmell,  2  M.  &  C. 

25  Beav.  512.  641 ;  Ramsbottom  v.  Freeman,  4 

{q)  Raivson  v.  Raivson,  11  L.     Beav.  145  ;  Meaden  v.  Sealey,  6 

Ha.  G20. 


1  A  receiver  will  not  be  appointed  without  notice  except  where 
pressing  necessity  exists,  and  there  is  clear  proof  of  the  exigency  of 
the  particular  case.  Triebert  v.  Burgess,  11  Maryl.  456  ;  Blond- 
heimv.  Moore,  Id.  374;  Clark  v.  Ridgely,  1  Maryl.  Ch.  Pec.  70; 
Nusbaum  v.  Stein,  12  Maryl.  315-322  ;  Gravenstine's  Appeal,  49 
Penna.  St.  R.  310;  Boshcick  v.  Isbell,  41  Conn.  305;  Weems  v. 
Laf.hrop,  42  Tex.  211 ;  The  People  v.  Norton,  1  Paige,  C.  P.  17  ; 
Tibbals  v.  Sargeant,  1  McCart.  449 ;  Sandford  v.  Sinclair,  8  Paige, 
0.  R.  373  ;  3  Edwards.  C.  R.  393  ;  Gibson  v.  Martin,  8  Paige,  C.  R. 
481  ;Yerplanck  v.  The  Mercantile  Ins.  Co.,  2  Id.  450;  French  v. 
Gifford,  30  Iowa,  148  ;  Bisson  v.  Curry,  35  Id.  72  ;  Whitehead  v. 
Wooten,  43  Miss.  523;  Vause  v.  Wood,  46  Miss.  120;  Turgeauv. 
Brady,  24  Louisiana  Ann.  348  ;  Field  v.  Ripley,  20  How.  Pr.  R.  26  ; 
McCarthy  v.  Peake,  18  Id.  138;  Devoe  v.  The  Ithaca  and  Osiuego 
Railroad  Co.,  5  Paige,  C.  R.  521.  In  this  last  case,  however,  the 
court,  although  refusing  to  appoint  a  receiver  on  an  ex  parte  appli- 
cation, nevertheless  granted  an  injunction  pending  the  motion.  See 
also  Austin  v.  Figueira,  7  Paige,  C.  R.  56. 


148  MODE   OF   APPOINTMENT. 

been  obtained  must  be  mentioned  in  the  notice  of 
motion. (s)  The  order  will  be  granted  on  affidavit  of 
service  of  notice  of  the  motion. (t)  The  application  for 
a  receiver  cannot  be  granted  before  appearance  on 
notice  of  motion  served  personally,  unless  such  service 
be  by  special  leave  of  the  court.(w)  Leave  to  serve  de- 
fendant with  notice  of  motion  for  a  receiver  before 
appearance  does  not  include  leave  to  give  short  notice 
of  motion.  Short  notice  of  motion  cannot  be  given 
without  express  leave  for  that  purpose.(x) 

The  rule  which  requires  previous  notice  to  be  served 
on  a  defendant  who  has  not  appeared  is  subject  to  an 
exception  where  the  defendant  has  absconded  to  avoid 
service,  and  his  residence  is  unknown. (y)  So,  also,  it 
was  under  the  old  practice  held  to  be  subject  to  an  ex- 
ception where  the  defendant  was  out  of  the  jurisdic- 
tion and  could  not  be  served. (z)  But  inasmuch  as 
under  the  new  practice  an  order  may  now  be  made  for 
service  of  the  bill  on  a  party  who  is  out  of  the  juris- 
diction,(a)  a  receiver  will  not,  there  is  reason  to  be- 
lieve, be  appointed  before  service  of  the  bill,  where  a 
party  whose  interest  is  sought  to  be  affected  by  the 
decree  is  out  of  the  jurisdiction,^)  unless  his  residence 

(.s)  Bill  v.    Riv.mcll,  8    Sim.  {?.)   Tav field  v.  Irvine,  2  Russ. 

G32;Jacklinv.  WilJcins,  6  Reav.  149;  Coward  v.  Chadwick,  lb. 

G08.  150  n.,  634  n.;  Gibbins  v. Main- 
it)  Meaden  v.  Sealer/,  6  Ila.  waring,  9  Sim.  77 ;  see  Noad  v. 

620.  Backhouse,  2  Y.  &  C.  C.  C.  529. 

(u)  Bamsbottomy.  Freeman,  (a)  Orel.  X.  r.  7 ;  Morg.  Oh. 

4  Beav.  145.  Ord.  423. 

(x)   I /art  v.  Tulk,  6  11a.  611.  {b)  See  Stratton  v.  Davidson, 

(y)    Dowlinrj   v.  Hudson,  14  1  R.  &  M.  484 ;  Broion  v.  Blount, 

Beav.  423.  2  R.  &  M.  83. 


MODE   OF   APPOINTMENT.  149 

be  unknown,  or  the  circumstances  of  the  case  be 
urgent.  The  leave  of  the  court,  however,  is  neces- 
sary, it  would  seem,  to  serve  personally  a  party  out  of 
the  jurisdiction  with  notice  of  motion  in  the  cause, 
although  such  party  has  been  served  with  a  copy  of 
the  bill  and  appearance  has  been  entered  for  him.(c) 

If  a  defendant  has  made  an  affidavit  in  the  cause, 
although  no  formal  appearance  be  entered,  he  will  be 
considered  to  have  appeared  for  the  purpose  of  appoint- 
ing a  receiver.(d) 

Receiver  appointed  at  any  Stage  of  the  Suit.— The  ap- 
plication for  a  receiver  may  be  made  at  any  stage  of 
the  suit,  according  as  the  urgency  of  the  case  requires 
it.1 

(c)   Green  v.  Pledger,  3  Ha.         {d)  Vann  v.  Barnett,  2  Bro.  C. 
165  :  see  Weguelin  v.  Lawson,  8     C.  158. 
L.  T.  N.  S.  763. 

1  As  a  receiver  may  be  appointed  at  any  stage  in  the  cause,  it  may 
be  proper  to  notice  here  the  authority  of  superior  courts  to  review 
the  action  of  inferior  tribunals  in  making  or  refusing  to  make  such 
an  appointment. 

In  England  an  appeal  lies  from  an  interlocutory  order.  Daniel's 
Chancery  Prac.  1568.  In  the  United  States  courts,  however,  the 
rule  is  different,  as  the  Act  of  Congress  of  September  24, 1789  (Rev. 
Stats.  Sects.  631  and  699),  by  which  this  subject  is  regulated,  allows 
appeals  from  final  decrees  alone.  Hence  no  appeal  will  lie  from  an 
interlocutory  order,  such  as  the  appointment  of  a  receiver,  or  the  like. 
See  remarks  of  Taney,  C.  J.,  in  Forgay  v.  Conrad,  6  Howard,  204  ; 
also  Perkins  v.  Fourniquet,  Id.  206.  But  cases  may  arise  in  which 
an  order  appointing  or  discharging  a  receiver  may  operate  as  a  final 
decree  ;  and  in  such  a  case  an  appeal  would  lie.  See  The  Milwaukee 
R.  R.  Co.  v.  Soutter,  2  Wallace,  521,  stated  ante,  p.  4,  note ;  and 
Cain  v.  Warford,  7  Maryl.  282,  and  Barry  v.  Briggs,  22  Mich. 
201,  are  to  the  same  effect. 

In  the  State  courts  the  rule  on  this  subject  is  not  uniform,  being 


150  MODE   OF    APPOINTMENT. 

If  the  application  for  a  receiver  is  made  before  de- 
cree, it  will  not  be  granted,  unless  the  appointment  of 
a  receiver  be  prayed  by  the  bill.  The  court  will  not 
even  give  leave  to  amend  for  the  purposes  of  the 
motion,  (e) 

Receiver  appointed  at  hearing,  though  not  prayed  for 
— A  receiver  may  be  appointed  at  the  hearing,  although 
not  prayed  by  the  bill,  if  the  facts  stated  are  sufficient 
to  authorize  the  appointment,  and  the  urgency  of  the 
case  requires  it.(Z)1     A  receiver  may  also  be  appointed 

(e)  Pare  v.  Clegg,  7  Jur.  N.  S.  2  Moll.  500  ;  Osborne  v.  Harvey, 

1136;   9   W.   R.   216;   but  see  1  Y.  &  C.  0.  C.  116  ;  see  Shee  v. 

Malcolm  v.  Montgomery,  2  Moll.  Harris,  1  J.  &  L.  91 ;  comp.  3 

500.  Drew.  120. 

(/)  Malcolm  v.  Montgomery, 

in  many  instances  regulated  by  statute.  It  was  held  in  Jones  v. 
Holliday,  37  Georgia,  573,  and  Reid  v.  Reid,  24  Id.  38,  that  the 
discretion  or  the  inferior  court  in  appointing  a  receiver  would  be 
reviewed  on  appeal,  if  shown  to  have  been  abused,  but  not  otherwise. 
See  also  Robenson  v.  Ross,  40  Georgia,  375. 

An  appeal  does  not  lie  from  such  an  order  in  Pennsylvania,  Holdin 
v.  McMakiris  Admrs.,  1  Pars.  289;  nor  in  New  York,  Twrm  r  v. 
Chrichton,  53  N.  Y.  641  ;  nor  in  Montana,  Wilson  v.  Davis,  1  Mont. 
II.  98  ;  nor  in  Indiana,  Wood  v.  Brewer,  9  Indiana,  86  ;  nor  in  Ala- 
bama, Mansony  v.  The  Bank,  4  Alab.  745  ;  nor  in  Michigan,  Col- 
gate  v.  Michigan  Lake  Shore  R.  R.  Co.,  28  Mich.  288,  Sailing  v. 
Johnson,  25  Id.  489.  In  Mississippi  it  has  been  held  to  be  autho- 
rized by  the  statute;  Wade  v.  The  American  Col.  Soc,  4  Sin.  <fc 
Marsh.  680.  So  also  in  Iowa;  Callanan  v.  Shaw,  19  Iowa,  185. 
See  Collins  v.  Case,  25  Wise.  651.  When  a  decree  is  made  in  a 
(in  e  wherein  a  receiver  has  been  appointed  and  an  appeal  is  taken 
from  thai  decree,  the  office  of  receiver  is  not  vacated  by  the  appeal; 
Swingv.  Townsend, 24 Ohio  St.  1. 

1  //,  nshaw  v.  Wells,  9  Humph.  568.  The  facts  showing  the  pro- 
priety of  appointing  a  receiver  should  appear  in  the  bill.  Tomlinson 
v.   Ward,  2   Connecticut,  396.     See  also   Oakley  v.    The  I'atcrson 


MODE   OF   APPOINTMENT.  151 

after  decree,  without  filing  a  supplemental  bill,  in 
cases  of  urgency. (g)  A  receiver,  for  instance,  was  ap- 
pointed after  decree  in  a  case  where  a  person,  not  being 
a  party  to  the  cause,  had  been  so  long  in  possession 
without  accounting  that  there  was  danger  of  his  ac- 
quiring an  absolute  title  by  adverse  possession.(A)  So 
also  a  receiver  was  appointed  after  decree  in  a  case 
where  the  mortgagee  in  possession  had  not  shown 
clearly  that  anything  was  due  upon  his  mortgage,  and 
the  next  estate,  being  a  life-estate,  was  in  danger  of 
being  lost  by  the  delay,  and  the  possible  inability  of 
the  first  mortgagee  to  refund  if  he  shall  be  ordered  to 
do  so.(i')  So,  also,  a  receiver  was  appointed  after  decree 
in  a  case  where  the  application  could  not  have  been 
made  at  the  hearing.(A-)  So  also,  a  receiver  was  ap- 
pointed after  decree  in  a  case  where  it  appeared  by  the 
report  that  the  circumstances  would  at  the  hearing 
have  entitled   the  party  to  a  receiver.(7)     So,  also,  a 


(g)  Bowman  v.  Bell,  14  L.  J.  (i)  Htles  v.  Moore,  15  Beav. 

Ch.  N.  S.  119  ;    14   Sim.    392  ;  175. 

Thomas  v.  Davies,  11  Beav.  29  ;  (k)  Bainbridge  v.  Blair,  4  L. 

Wright  v.  Vernon,  3  Drew.  112.  J.  Ch.  N.  S.  207 

(h)    Thomas    v.    Davies,   11  (1)  Att.-Gen.v.  Mayor  of  Gal- 

Beav.  29.  way,  1  Moll.  95,  104. 

Bank,  1  Green,  C.  R.  173  ;  and  Williams  v.  Monroe,  3  Cal.  383. 
But  the  grounds  for  the  appointment  of  a  receiver  need  not  be  in- 
corporated into  the  pleadings.  It  is  enough  if  the  latter  disclose  a 
case  of  the  class  in  which  receivers  may  be  appointed  and  the  special 
reasons  therefor  may  be  set  out  on  a  motion.  Hottenstein  v.  Con- 
rad, 9  Kan.  435.  The  pendency  of  a  motion  to  amend  the  bill  is  no 
objection  to  a  motion  for  the  appointment  of  a  receiver,  provided  the 
defect  is  not  fatal,  or  does  not  render  the  bill  demurrable.  Barnard 
v.  Darling,  1  Barb.  C.  R.  76. 


152  MODE    OF    APPOINTMENT. 

receiver  was  appointed  in  a  case  where,  after  a  decree 
for  sale,  the  defendant  by  neglecting  to  bring  in  the 
deeds  had  prevented  the  plaintiff  from  obtaining  the 
benefit  of  the  decree.(?n)  Unless,  however,  a  special 
case  be  made  out,  the  court  will  not  appoint  a  receiver 
after  decree,  if  the  bill  do  not  pray  a  receiver.(w) 

The  application  for  a  receiver  may  be  granted  after 
decree,  although  it  has  been  previously  refused,  if  a 
state  of  facts  entitling  the  party  to  a  receiver  be  made 
to  appear  on  the  proceedings  in  the  cause. (o) 

A  receiver  may  be  appointed  after  decree  although 
by  the  decree  further  consideration  generally ,(p)  or 
the  matters  in  question  between  the  plaintiff  and  the 
particular  defendant,  have  been  reserved.^) 

If  no  subsequent  circumstances  have  occurred,  ren- 
dering the  appointment  of  a  receiver  necessary  for  the 
protection  of  the  estate  or  otherwise,  a  receiver  will 
not,  it  would  seem,  be  appointed  after  decree.(r) 

It  has  been  held  in  Ireland  that  after  a  decree  taken 
pro  confesso,  the  application  for  a  receiver  must  be  sup- 
ported by  an  affidavit  as  to  the  sum  due  for  principal, 
interest,  and  costs,  after  just  allowances,  and  that 
the  defendant  is  in  possession.^) 

(m)  Shee  v.  Harris,  1  J.  &  L.  (?)  Cooke  v.  Gwynn;Z  Atk. 

•jl  :  See  Hackett  v.  Snow,  10  Ir.  689. 

Eq. 220.  (>')  Wright*.  Vernon, 3 Drew. 

(n)  Fallows  v.  Lord  Dillon,  1  121  ;  sec  Hacked  v.Snoiv,  10  Ir. 

W.  i;.  mi.  Bq.  220. 

(o)  Att.-Oen.Y.  Mayor  of  (lal-  (a)   Rogers  v.  Newton,  2  Ir. 

way,  1  Mull.  'J.>.  104.'  Eq.  40. 

(]>)  Hilea  v.  Moore,  l.">  Beav. 
175. 


MODE    OF    APPOINTMENT.        .  153 

Keceiver  not  appointed  before  hearing  on  motion 
founded  on  Evidence  in  the  Cause.— Before  the  hearing 
of  the  cause,  the  court  will  not  hear  a  motion  for  a 
receiver  founded  upon  evidence  which  has  been  taken 
in  the  cause.(7) 

When  Application  for  Receiver  may  be  made  by  De- 
fendant—After the  decree,  application  for  a  receiver 
may  he  made  by  one  defendant  against  a  co-defend- 
ant ;(m)  but  before  decree  the  application  for  a  receiver 
cannot  be  made  by  a  defendant.^)1  A  motion  by  a 
defendant  for  a  receiver  made  before  decree,  was  held 
to  be  irregular,  even  in  a  case  where  one  executor 
filed  a  bill  against  his  co-executor,  insisting  that  a 
receiver  was  necessary.2  The  plaintiff",  though  he 
had  prayed  for  a  receiver,  refused  to  move  for  one.(y) 

(t)   Lloyd  v.  Passingham,  3  {x)   Robinson  v.  Hadley,  11 

Mer.  697.  Beav.  614. 

[u)  Hiles  v.  Moore,  15  Beav.  (y)  lb. ;  see  Grote  v.  Bury,  1 

175.  W.  R.  92. 


1  To  the  same  effect  is  LeddeVs  Extr.  v.  Starr,  4  C.  E.  Green, 
159.  By  the  New  York  Code  receivers  may  be  appointed  on  the 
application  of  either  party.  And  now  in  England,  in  certain  cases 
(as  in  partnership  bills,  for  example),  the  defendant  may  apply  for  a 
receiver  before  judgment.  Sargant  v.  Read,  L.  It.  1  Ch.  D.  600. 

2  In  Henshaw  v.  Wells,  9  Humph.  568,  a  bill  was  filed  by  a  second 
mortgagee  of  one  of  two  parcels  of  land  against  the  mortgagor  and 
the  first  mortgagee  of  both  parcels.  The  bill  prayed  that  a  receiver 
might  be  appointed  of  the  parcel  mortgaged  to  the  complainant. 
The  first  mortgagee  asked  that  the  receivership  should  embrace  both 
parcels.  It  was  objected  on  behalf  of  the  mortgagor  that  a  receiver 
could  not  be  appointed  upon  the  application  of  a  co-defendant,  but  it 
was  held  that  the  application  was  proper  under  the  circumstances,  as 
both  mortgagees  were  seeking  relief. 


154  MODE   OF    APPOINTMENT. 

At  the  hearing  of  a  suit  for  redemption,  the  court 
would  not,  on  the  application  of  the  defendant,  grant 
a  receiver  against  the  plaintiff.(z)  If  a  defendant  re- 
quires a  receiver  against  a  plaintiff,  he  must,  as  a 
general  rule,  file  a  cross  bill.(«)  In  cases  where  the 
application  may  be  made  by  the  defendant,  it  should 
be  by  petition. (b) 

Affidavits.— The  application  for  a  receiver  must  be 
supported  by  evidence  showing  that  the  appointment 
is  necessary.(c)  If  the  application  is  made  before  de- 
cree, the  affidavits  must  be  founded  on  the  allegations 
in  the  bill.  If  statements  not  founded  on  the  allega- 
tions in  the  bill  are  introduced  into  the  affidavits,  the 
court  will  not  attend  to  them.(d)  Where  the  case 
made  by  the  bill  fails,  it  seems  that  the  plaintiff'  will 
not  be  allowed  to  rely,  as  a  ground  for  a  receiver,  upon 
the  equity  confessed  b}^  the  answer.(e)  If  the  applica- 
tion was  made  before  answer,  the  practice  formerly 
was  that  the  plaintiff  could  rely  on  the  admissions 
contained  therein,  and  could  not  enter  into  evidence 
in  opposition  thereto;  but  now,  upon  any  application 
for  a  receiver,  or  to  discharge  an  order  appointing  a 
receiver,  the  answer  of  the  defendant  is  for  the  purpose 

(z)  Barlow  v.  Gains,  8  Beav.  (c)  See  Middlcton  v.  Dodsiocll, 

329.  13Ves.  269. 

(a)    Robinson  v.  Hadley,  11  (</)  Dawson  v.  Yates,]  Beav. 

Beav.    614;   Orote   v.   Bury,    1  .300. 

W.  II.  92.  {<-)  Cremen  v.  Hawkes,  2  J.  & 

(h)  Barlow  v.  Qain$,  8  Beav.  L.  674. 
329;  I lilrs  v.  Moore,  15   Beav. 
175. 


MODE   OF   APPOINTMENT.  155 

of  evidence  on  such  application  to  be  regarded  merely 
as  an  affidavit  of  the  defendant ;  and  affidavits  may 
be  received  and  read  in  opposition  thereto^/)1 

Nomination  of  Eeceiver.— The  person  who  is  to  fill  the 
office  of  receiver  is  generally  selected  in  proceedings 
in  the  judge's  chambers,  but  if  both  parties  agree  upon 
a  proper  person,  the  court  will  at  once  insert  his  name 
in  the  decree.^?)  "Where,  in  consequence  of  the  urgency 
of  the  case,  an  order  was  made  for  the  appointment 
of  a  receiver  ex  parte,  the  plaintiff  was  appointed 
receiver.(A) 

If  the  person  to  be  nominated  receiver  is  not  named 
in  the  order,  the  appointment  is  made  in  chambers. 
For  this  purpose  a  copy  of  the  order  is  left  there,  and 
a  summons  to  proceed  thereon  is  issued  and  served  on 
all  parties  interested  in  the  usual  manner.(j)  On  the 
return  of  the  summons,  or  at  an  adjournment  thereof, 
the  party   having  the  conduct  of   the  proceedings^-) 

(/)  15  &  16  Vict.,  c.  86,  s.  59.  fendant,  a    mortgagee,  was   ap- 

(g)  Anderson  v.  Kemshead,  1 6  pointed  receiver. 
Beav.  345;  Poioys  v.  Blagrave,         (i)  Ord.   XXXV.  rr.  15,  16. 

18  Jur.  464;   Ames  v.  Birken-  See  as  to  the  form  of  the  sum- 

liead  Docks,  20  Beav.  332  ;  see  mons,  3  Dan.  Ch.  Pr.  1722. 
Ramsden  v.  Fairthorpe,  1  N.  R.         (k)  Where  a  receiver  had  been 

389.  appointed  in  two  administration 

{h)  Rawson  v.  Rawson,  11  L.  suits,  the  carriage  of  the  appoiut- 

T.  N.  S.  595.     In  Davis  v.  Bar-  ment  was  given  to  the  plaintiff 

rett,  13  L.  J.  Ch.  304,  the   de-  who  first  gave  notice  of  motion. 

Hart  v.  Tulk,  6  Ha.  611. 

1  It  is  no  objection  to  a  motion  for  a  receiver  and  to  an  order  for 
the  examination  of  the  defendant  on  oath  before  the  master  in  a 
creditor's  suit,  that  an  answer  upon  the  oath  of  the  defendant  is 
waived  by  the  bill.     Root  v.  Safford,  2  Barb.  C.  R.  33. 


156  MODE   OF   APPOINTMENT. 

brings  into  chambers  evidence  showing  the  nature  and 
value  of  the  property  over  which  the  receivership  is  to 
extend,  and  the  fitness  of  the  person  proposed  by  him 
as  receiver. (I) 

If  the  party  proposed  as  receiver  is  objectionable, 
any  person  interested  in  the  proceedings  may  propose 
that  some  other  person  be  appointed.  A  stranger  to 
the  suit  cannot,  it  may  be  observed,  propose  a  re- 
ceiver.^)1 The  proposal  must  come  from  a  party 
interested.(w)  The  most  fit  person  should  be  appointed 
without  regard  to  the  party  by  whom  he  has  been 
proposed. (o)  In  making  the  selection,  the  circum- 
stances of  the  case  and  the  interests  of  all  parties 
must  be  taken  into  consideration  ;(p)  but,  other  things 
being  equal,  that  is,  supposing  the  parties  equally 
interested,  and  that  the  persons  proposed  on  both  sides 
are  unobjectionable,  the  person  proposed  by  the  party 
having  the  conduct  of  the  proceedings  is  usually  pre- 
ferred.^) In  the  appointment  of  a  receiver  considera- 
te Dan.  Ch.  Pr.  1574.  See  as  tate,  she  may  appoint  whom  she 
to  forms,  3  lb.  1724-1726.  pleases.      An    affidavit    by   her 

(m)  Att.-Gen.v.  Day, 2  Madd.     husband   that    the    person    pro- 
246.  posed  by  her  is  unfit,  cannot  be 

(n)  lb. ;    Bagot  v.   Bagot,  2     attended  to.     Bagot  v.  Bagvt,  2 
Jur.  1063.  Jur.  1063. 

(o)  Lespinasse  v.  Bell,  2  J.  &        (q)    Wilson  v.    Poe,    1    Hog. 

W.  436.  322  ;    Dan.  Ch.    Pr.    1574 ;    see 

(p)  Wood  v.  Ilitchings,  4  Jur.     Baylies  v.  Baylies,  1  Coll.  537  ; 

858.     If  a  married  woman  desires     Bord  v.  Tollemache,  1  N.  It.  177. 

a  receiver  over  her  separate  es- 


1  See  Tyler  v.  Willis,  33  Barb.  331. 


MODE   OF   APPOINTMENT.  157 

ble  attention  will  be  given  to  the  recommendations  of 
a  testator.(r) 

If  the  estate  be  in  mortgage,  the  preference  will  be 
given  to  the  person  proposed  by  the  mortgagee,  unless 
there  is  some  substantial  objection  to  him,  though  the 
person  proposed  by  the  mortgagor  may  be  more  expe- 
rienced in  the  duties  of  the  office.  It  was  said  to  be 
an  indulgence  in  the  mortgagee  to  suffer  the  owner  of 
the  estate  to  appoint  a  receiver.(s) 

A  party  to  the  cause  may  propose  himself  as  re- 
ceiver, if  leave  to  that  effect  be  given  and  embodied 
in  the  decree  or  order.(7)  If  leave  to  that  effect  be  not 
embodied  in  the  decree  or  order,  a  party  to  the  suit 
cannot  propose  himself.(w)  The  judge  in  chambers 
can,  however,  give  leave,  if  the  question  has  not  been 
disposed  of  in  court.  If  the  leave  has  been  refused,  a 
subsequent  order  to  that  effect  can  be  obtained  on 
summons  at  chambers.(a;) 

According  to  the  old  practice  of  the  court,  when  the 
appointment  of  a  receiver  rested  with  the  Masters, 
the  settled  rule  and  practice  was  not  to  entertain  any 
objection  to  the  report  of  the  Master  which  was  not 

(r)     Wynne    v.   Lord    Neiu-  was  instituted  by  a  second  mort- 

borough,  15  Ves.  283.  gagee 

(s)    Wilkins   v.    Williams,   3  (t)  Meaden  v.  Sealey,  6   Ha. 

Ves.    588 ;    see    Bord  v.    Talk-  620  ;   Cookes  v.   Cookes,  2  D.  J. 

mache,  1  N.  R.  177,  where  the  &  S.  526  ;  Set.  on  Deer.  1003. 

deed  contained  a  provision    for  (u)   Davis  v.  Duke  of  Marl- 

the  appointment  of  a  receiver  by  borough,  2  Sw.  118. 

the  first  mortgagee,  and  the  suit  (x)  Dan.  Ch.  Pr.  1568. 
for  the  appointment  of  a  receiver 


158  MODE    OF    APPOINTMENT. 

founded  on  principle.^)  The  court  would  not  inter- 
fere with  the  discretion  of  the  Master  in  the  appoint- 
ment of  a  receiver,  unless  some  substantial  objection 
could  be  shown  to  the  appointment. (2)  Under  the 
new  practice  the  Court  of  Appeal  acts  precisely  on  the 
same  principles  which  the  court  had  acted  on  during 
the  time  when  the  old  practice  was  in  force,  and  will 
not  entertain  an  application  bringing  in  question  the 
decision  of  the  judge  as  to  the  most  fit  person  to  be 
appointed  receiver,  unless  the  appointment  be  open  to 
some  overwhelming  objection  in  point  of  choice,  or 
some  objection  fatal  in  point  of  principle.(a)1 

(y)  Ley  v.  Ley,  25  L.  J.  Ch.  ersbank  v.  Colasseau,  3  Ves.  164; 

GOO  ;  CooJces  v.  Cookes,  2  D.  J.  &  Anonv  lb.  515  ;  Tharp  v.  Tharp, 

S.  530 ;  see  Blakeway  v.  Blake-  12  Ves.  317. 
way,  2  L.  J.  Ch.  N.  S.  75.  (a)  Ley  v.  Ley,  25  L.  J.  Ch. 

(z)  Creuze  v.  Bishop  of  Lon-  600  ;  Cookes  v.  Cookes,  2  D.  J.  & 

don,  2  Bro.  C.  C.  253  ;   Thomas  S.  530. 
v.  Dawkin,  1  Ves.,  Jr.,  452 ;  Bow- 

1  In  the  matter  of  the  Eagle  Iron  Works,  8  Paige,  C.  R.  385.  the 
rules  on  this  subject  were  clearly  stated  by  Chancellor  Walworth  in 
the  following  language  :  "  Where  it  is  referred  to  a  Master  to  report 
a  proper  person  to  be  appointed  a  receiver  of  the  property  of  a  de- 
fendant, or  of  a  corporation,  or  the  committee  of  an  idiot  or  lunatic, 
and  to  approve  of  sureties  to  be  given  by  such  receiver  or  committee, 
the  appointment  is  not  complete  until  it  is  confirmed  by  a  special 
order  of  the  court.  lint  where  the  Master  is  directed  to  appoint  a 
receiver,  and  to  take  from  him  the  requisite  security,  no  order  for  the 
confirmation  of  tin'  appointment  is  necessary.  If  either  party  is 
dissatisfied  with  the  appointment  made  by  the  Master,  the  proper 
course  is  to  present  a  petition  to  the  court,  upon  due  notice  to  all  the 
other  parties  who  have  appeared  mid  who  are  interested  in  the  ap- 
pointment,  stating  the  grounds  of  objection  to  the  receiver  and 
praying  that  the  Master  may  review  his  report.  .  .  .  The  court  will 
not  disturb  the  decision  of  tin'  Master  appointing  a  receiver,  merely 


MODE   OF   APPOINTMENT.  159 

It  is  a  substantial  objection  to  the  appointment  of  a 
receiver  that  he  has  an  undue  partiality  for  one  of  the 
parties  ;(b)  but  if  an  order  be  made,  without  any  objec- 
tion on  the  part  of  any  of  the  parties,  by  which  liberty 
was  given  to  one  of  the  parties  to  propose  himself  as 
receiver,  the  question  is  one  not  of  principle,  but  a 
question  of  discretion  under  all  the  circumstances  of 
the  case;  and  if  the  judge  appoints  one  of  them  as 
receiver,  the  Court  of  Appeal  will  not  interfere  with 
that  discretion.(c)  It  is  no  objection  to  the  appoint- 
ment of  a  party  to  the  suit  as  receiver,  if  leave  to  that 
effect  has  been  given  in  the  decree  or  order,  that  there 
may  be  disputes  and  differences  between  the  parties.^) 

Where  a  receiver  has  been  appointed,  the  court  will 
not  remove  him  on  the  mere  ground  of  his  being  an 
illiterate  person,  unless  some  other  reason  can  be 
given,  such  as  mismanagement,  dishonesty,  or  incom- 
petency to  manage  the  estate.(e) 

Receiver  on  Bill  pro  confesso.— In  pronouncing  the 
decree,  the  court  may  either  upon   the  case  stated  in 

(b)  Blakeivay  v.  Blakeivay,  2         (c)   Cookes  v.   Cookes,  2  D.  J. 
L.  J.  Ch.  N.  S.  75.    [See  Perry  v.     &  S.  530. 
Oriental    Hotels    Co.,   L.    R.  5         (d)  lb. 

Ch.  App.  420.]  (e)  Chaytor  v.  Maclean,  11  L. 

T.  2. 

because  it  may  think  he  might  have  made  a  better  selection  among 
the  several  candidates  proposed.  To  induce  the  court  to  interfere,  the 
defendant  must  either  show  that  the  person  appointed  by  the  Master 
is  legally  disqualified,  or  that  his  situation  is  such  as  to  induce  a 
belief  that  the  interests  of  the  parties  will  not  be  properly  attended 
to  by  him."  The  chancellor  may  appoint  a  receiver  in  the  first 
instance,  without  previous  reference  to  a  Master.  See  The  Bank 
of  Columbia  v.  The  Att.-Gen.,  3  Wend.  588. 


160  MODE   OP    APPOINTMENT. 

the  bill,  or  upon  that  case  and  a  petition  presented  by 
the  plaintiff  for  the  purpose,  as  the  case  may  require, 
order  a  receiver  of  the  real  and  personal  estate  of  the 
defendant  against  whom  the  bill  has  been  ordered  to 
be  taken  pro  confesso,  to  be  appointed  with  the  usual 
direetions.(/) 

Where  a  bill  is  taken  pro  confesso,  no  proceeding  is  to 
be  taken,  and  no  receiver  appointed  under  the  decree  ; 
and  no  sequestrator  under  any  sequestration  issued  in 
pursuance  thereof,  shall  take  possession  of  or  in  any 
manner  intermeddle  with  any  part  of  the  real  or  per- 
sonal estate  of  a  defendant,  and  no  other  process  is  to 
issue  to  compel  performance  of  the  decree  without 
leave  of  the  court  to  be  obtained  on  motion,  with 
notice  served  on  such  defendant  or  his  solicitor,  unless 
the  court  dispense  with  such  service.(^)  The  order,  it 
may  be  observed,  assumes  that  a  receiver  may  be 
under  the  decree.  The  order  is  not  that  no  proceeding 
shall  be  taken  to  appoint  a  receiver,  but  that  no  re- 
ceiver appointed  shall  take  possession. (A)  Where,  there- 
fore, the  appointment  of  a  receiver  has  been  directed, 
the  chief  clerk  may  appoint  him  without  serving  the 
defendant,  (i) 

What  Security  is  required  for  a  Receiver.— A  person 
to  be  appointed  receiver  must,  unless  otherwise  ordered, 
first  give  security,1  to  be  allowed  by  the  judge  to  whose 

(/)  Ord.  XXII.  r.  9.  (/()   Dresser  v.  Morton,  2  Ph. 

\g)  Ord.  XXII.  r.  13.  285. 

(»)  lb. 

1  See  Williamson  v.  Wilson,  1  Bland,  422  ;  Tomlinson  v.  Ward, 
2  Connecticut,  396;  Colemore  v.  North,  27  L.  T.  Rep.  (N.  S.)  405. 


MODE   OF    APPOINTMENT.  161 

court  the  cause  is  attached,  duly  to  account  for  what 
he  shall  receive  on  account  of  the  rents  and  profits  for 
the  receipt  of  which  he  is  to  be  appointed,  at  such 
periods  as  the  judge  shall  appoint,  and  to  account  for 
and  pay  the  same  as  the  court  shall  direct,  or  as  the 
case  may  be,  to  be  answerable  for  what  he  shall  re- 
ceive in  respect  of  the  personal  estate,  for  the  getting 
in  and  collection  of  which  he  is  to  be  appointed,  and 
to  account  for  and  pay  the  same  respectively,  as  the 
court  shall  direct.(&) 

The  security  usually  required  is  the  recognizance  of 
the  receiver,  with  two  or  more  sureties.(7)  The  recog- 
nizance is  given  to  the  Master  of  the  Rolls  and  senior 
Vice-Chancellor  for  the  time  being,(w)  and  must  be 
taken  before  a  person  authorized  to  administer  oaths 
in  Chancery.(?i)  It  is  usually  for  double  the  amount 
of  the  annual  rental  or  yearly  value  of  the  estate  to 
be  collected.(o)  Where  debts  or  outstanding  estate 
are  to  be  got  in,  security  is  given  to  the  full,  or  some- 
thing beyond  the  full  amount  which  is  ordered  or 
expected  to  be  received.^)  With  the  view  of  reduc- 
ing the  amount  of  the  recognizance,  part  of  the  estate 
may  be  ordered  to  be  paid  into  court  for  safe  custody, 
and  security  be  required  only  for  the  rest.^)     With 

(k)  Ord.  XXIY.  r.  1.  (o)  Set.  on  Deer.  1007. 

(I)  Head  v.  Lord   Orrery,  3  (p)  Fisher  on  Mortg.  1,  p.  405. 

Atk.  237;   Set.  on  Deer.  1007;  (?)  Poole  v.    Ward,  Set.  on 

see  Re  Ward,  31  Beav.  1.  Deer.  1007  ;  Ex  parte  Clayton,  1 

(m)  Ord.  XLII.  r.  13.  Kuss.  476  ;  see  Re  Eagle,  2  Ph. 

\n)  Ord.  XXIV.  r.  1 ;  see  Dan.  201. 
Ch.  Pr.  686. 
11 


162  MODE   OF   APPOINTMENT. 

the  same  view  the  receiver  may  also  be  restricted  from 
getting  in  mortgage  debts.(r) 

It  is  not  regular  to  take  as  security  for  a  receiver  an 
assignment  of  a  mortgage  belonging  to  him,(s)  or  the 
bond  of  an  incorporated  guarantee  association,^)  in- 
stead of  the  usual  security.  A  transfer  of  govern- 
ment stock  has,  however,  been  accepted  as  security  for 
a  receiver.('tt) 

Where  a  person  resident  in  Ireland  is  appointed  re- 
ceiver by  the  court  here,  the  security  taken  is  a  judg- 
ment confessed  by  him  and  his  sureties  in  the  Court  of 
Queen's  Bench  there  in  favor  of  the  Master  of  the 
Rolls  and  senior  Vice-Chancellor  here,  and  such  judg- 
ment is  duly  docketed  and  registered  there  so  as  to 
give  a  lien  on  the  real  estates  of  the  receiver  and 
sureties.^) 

The  sureties  must  be  persons  resident  in  England, 
even  where  the  property  to  be  collected  is  out  of  the 
country  .(y) 

Where  the  property  of  which  a  receiver  has  been 
appointed  has  increased  in  value  during  the  receiver- 
ship, additional  security  has  been  required  to  be  given 
by  hi  111.(2)  Upon  any  event,  such  as  death  or  bank- 
ruptcy, happening  which  would  prevent  the  recogni- 
zance being  effectually  put  in  force  against  them,  an 

(r)  Fisheron  Mortp.  l,p.  405.         (?/)    Betagh     v.     Concamnni, 
(s)  Mead  v.   Lord  Orrery,  3    Smith  on  Rec.  p.  17. 

Atk.  237.  (?)  Bet.  nn  Deer.  L007. 

(/)  Manners?. Furze,U  Beav.        (y)  Cockburn  v.  Raphael,  2 

30.  Sim.  &  St.  453. 

(z)  Dim.  Oh.  Pr.  L573. 


MODE   OF    APPOINTMENT.  163 

order  will  be  made  at  chambers  on  summons  directing 
the  receiver  to  give  a  new  security.(a) 

The  court  will  not  dispense  with  the  usual  security, 
even  with  the  consent  of  the  parties  interested. (b) 
But  if  the  parties  interested  are  competent  to  assent 
and  agree  to  appoint  a  receiver  of  their  own  authority, 
and  not  by  the  authority  of  the  court,  the  court  may 
allow  him  to  act  even  without  recognizance.(c)  In  a 
case  where  a  testator  had  by  his  will  appointed  a  re- 
ceiver, stating  that  he  intended  by  the  appointment 
to  give  him  a  pecuniary  benefit,  he  was  appointed 
receiver  on  his  own  personal  recognizance  ;(d)  and  even 
in  a  case  where  all  the  parties  were  not  competent  to 
consent,  the  circumstance  that  the  receiver  had  been 
employed  by  the  testator  to  manage  the  estate  was 
held  to  be  a  reason  for  dispensing  with  sureties  and 
appointing  him  receiver  on  his  own  personal  recogni- 
zance.^) In  a  late  case,  however,  the  court  would  not 
dispense  with  the  usual  security,  some  of  the  parties 
being  not  sui  juris,  and  therefore  incapable  of  giving 
consent.(/) 

It  is  not  unusual,  where  no  salary  is  given  to  the 
receiver,  to  dispense  with  the  security.(^) 

"Where  the  person  proposed  as  receiver,  has  been 

(a)  Set.  on  Deer.  1019.  (e)  Carlisle  v.  Berkeley,  Amb. 

(b)  Manners  v.  Furze,ll  Beav.  599  ;  see  Wilson  v.  Wilson,  11 
30.  Jur.  793. 

(c)  Manners  v. Furze,  11  Beav.  (/)  Tylee  v.  Tylee,  17  Beav. 
31 ;  see  Bainbrigge  v.  Blair,  3  583. 

Beav.  424.  (g)  Gardner  v.  Blane,  1  Ha. 

(cl)  Hibbert  v.  Hibbert,  3  Mer.     381. 
681. 


164  MODE   OF    APPOINTMENT. 

chosen,  the  amount  of  his  security  will  be  fixed,  and 
the  persons  proposed  to  be  his  sureties  approved.  The 
partners  in  trade  of  the  receiver,  persons  in  partner- 
ship together,  and  the  solicitor  in  the  cause,  are  usually 
rejected  as  sureties  for  a  receiver.(A) 

Eecognizance  of  Receiver  and  Sureties.— After  the 
approval  of  the  person  proposed  as  receiver  and  the 
persons  proposed  as  his  sureties,  the  receiver's  solicitor 
prepares  the  draft  recognizance,  and  engrosses  it  after 
it  has  been  settled  by  the  Chief  Clerk.(i')  The  recog- 
nizance must  then  be  taken  before  some  person  author- 
ized to  administer  oaths  in  Chancery  ;(h)  and  each 
surety  must  also  make  an  affidavit  that  he  is  worth 
the  amount  for  which  he  is  bound  after  payment  of 
all  his  just  debts.(T)  If  any  doubt  as  to  the  suffi- 
ciency or  solvency  of  the  surety  exist,  the  opposing 
solicitor  has  a  right  to  attend  at  the  time  appointed 
for  acknowledging  the  recognizance,  and  examine  the 
sureties  on  these  points.(m) 

The  recognizance  and  an  office  copy  of  the  affidavit 
of  the  sureties  having  been  left  at  chambers,  a  memo- 
randum of  the  allowance  of  the  recognizance  is  written 
in  the  margin  of  the  recognizance,  and  signed  by  the 
Chief  Clerk.(w) 


(ft)  Dan.  Ch.  Pr.  1575.  (m)  Smith  on  Rec'18. 

(*)  lb. ;  Smith  Ch.  Pr.  1028.  (n)  Dan.  Ch.  Pr.  1575.    Sec  as 

(/,  )  Dan.  Ch.  Pr.  1575.  to  form  of  memorandum,  3   lb. 

{I)  lb.  ;  see  as  to  form  of  affi-  1323,  1727. 
davit,  3  lb.  1728. 


MODE   OF   APPOINTMENT.  165 

The  recognizance  is  then  sent  from  the  chambers  to 
the  enrolment  office  in  Chancery,  and  a  receipt  taken 
for  it  from  the  Clerk  of  Enrolments.(o)  The  recogni- 
zance must  be  enrolled  within  six  months  from  the 
acknowledgment  thereof  \{p)  but  under  special  circum- 
stances leave  may  be  had  from  the  court  to  enrol  it 
nunc  pro  tunc,(q)  though  not,  it  would  seem,  to  the 
prejudice  of  intervening  incumbrancers.^-) 

The  appointment  of  a  receiver  is  not,  however,  com- 
pleted by  the  enrolment  of  the  recognizance.  A  fur- 
ther order  must  be  made  at  chambers,  appointing  the 
person  approved  at  chambers  receiver  pursuant  to  the 
order,  and  fixing  the  periods  at  which  he  is  to  pass  his 
accounts  and  pay  the  balances  due  from  him  thereon.(s) 
To  obtain  this  order  a  further  summons  which  is  issued 
and  served  in  the  ordinary  manner  is  usually  neces- 
sary.^) The  order  is  drawn  up  by  the  Registrar  in 
the  usual  manner,  and  completes  the  appoint  rnent.(w)1 

Completion  of  Appointment  of  Receiver.— When  the 
receiver  is  named  in  the  order  made  on  the  application 


(o)  Dan.  Ch.  Pr.  1575  ;   Smith  (s)  Dan.  Ch.  Pr.  1576  ;  Smith 

Ch.  Pr.  1029.  Ch.  Pr.  1030;  see  as  to  forms,  3 

(p)  Ord.  XLII.  r.  12.  Dan.  Ch.  Pr.  1733  ;  Set.  on  Deer. 

(q)lb.;  Vaughanv.  Vaughan,  1003. 

1  Dick.  90.  {t)  Dan.  Ch.  Pr.  1576. 

(r)  Bothomly  v.  Fairfax,  1  P.  (it)  Smith  Ch.  Pr.  1030  ;  see 

W.  340 ;  Blots  v.  Betts,  1  Dick,  as  to  forms,  Set.  on  Deer.  1003. 
336  ;  Set.  on  Deer.  1007. 

1  See  The  People  v.  The  Central  City  Bank,  53  Barb.  412. 


166  MODE   OF    APPOINTMENT. 

to  appoint  a  receiver,  his  appointment  ia  usually  made 
conditionally  upon  his  giving  security.  A  copy  of 
the  order  is  left  at  chambers,  and  a  summons  to  settle 
the  security  is  issued  and  served  on  the  parties  inter- 
ested ;(x)  and  thereupon  the  amount  of  the  security  to 
be  given  will  be  settled  upon  the  like  evidence,  and 
the  recognizance  will  be  approved,  completed,  and 
enrolled  in  the  manner  before  described.^/)  The  Chief 
Clerk  will  then  issue  a  certificate  that  security  has 
been  given,  and  this,  when  adopted  by  the  judge  and 
filed,  completes  the  appointment,^)  and  no  further 
order  is  necessary. (a) 

On  an  application  at  chambers  to  appoint  a  receiver, 
the  expense  of  a  certificate  in  addition  to  an  order 
ma}7  be  saved  by  the  recognizance  being  completed 
and  enrolled  before  an  order  is  drawn  up.  In  such 
case  the  recognizance  should  recite  that  the  judge  has 
approved  the  proposed  receiver  subject  to  his  giving 
security,  instead  of  reciting  the  order  directing  a  re- 
ceiver to  be  appointed  ;  and  the  order  should,  after 
reciting  that  the  recognizance  has  been  enrolled,  ap- 
point a  receiver  and  fix  the  days  for  him  to  bring  in 
his  accounts  and  pay  the  balance.(6) 

The  costs  incurred  with  reference  to  the  completion 
of  the  security  of  the  receiver  aud  subsequent  thereto, 


{x)  Dan.  Ch.  Pr.  157(5 ;  see  as        (z)  See  as  to  form  of  certificate, 
to  form,  3  lb.  17:51).  3  Dan.    Ch.  Pr.  1731  ;    Set.  ou 

{y)  Supra,  p.  164,  165 ;  Dan.     Deer.  1004. 
Cb.  Pr.  L576.  [a)  Set.  on  Deer.  1004. 

(/;)  Dan.  Cb.  Pr.  1576. 


MODE    OF    APPOINTMENT. 


167 


are  in  the  first  instance  paid  by  the  receiver,  and  will 
be  allowed  him  in  passing  his  first  account. (c)1 


(c)  lb. ;  see  as  to  costs  where 
an  ignorant  person  had  been  in- 
duced by  the  misrepresentations 
of  the  plaintiff  to  consent  to  act 
as  receiver,  and    afterwards,  on 


discovering  the  nature  of  the 
office,  refused  to  enter  into  the 
recognizance,  Hunter  v.  Pring, 
8  Ir.  Eq.  102. 


1  See  Appendix  for  forms  of  orders  appointing  receivers,  and  di- 
recting them  in  the  management  of  the  estate.  See,  also,  3  Dan. 
Chan.  Prac.  2336-2346  (3d  Am.  ed.). 


CHAPTER  VI. 

EFFECT  OF  THE  APPOINTMENT  OF  AND  POSSESSION  OF  A 
RECEIVER. 

Parties  to  the  Suit  removed  from  Possession.— In  ap- 
pointing a  receiver  the  Court  of  Chancery  takes  pos- 
session of  the  property,  over  which  the  receiver  is 
appointed,  by  the  hands  of  its  officer.1  A  receiver 
duly  appointed  by  the  Court  of  Chancery  is,  from  the 

1  Battle  v.  Davis,  66  North  Carol.  252.  It  is  not  necessary  in 
any  case  for  the  receiver  to  put  himself  in  a  situation  where  he  is  not 
entitled  to  the  full  protection  of  the  court ;  as  he  is  under  no  obliga- 
tion to  attempt  to  take  property  out  of  the  possession  of  a  third 
person,  or  even  out  of  the  possession  of  the  defendant  himself,  by 
force,  and  without  an  express  order  of  the  court  directing  him  to  do 
so.  The  proper  course  is  for  the  receiver  to  call  upon  the  Master  to 
decide,  upon  the  examination  of  the  defendant,  and  on  the  evidence 
before  him,  what  property  legally  or  equitably  belonging  to  the 
defendant  and  to  which  the  receiver  is  entitled  under  the  order  of 
the  court,  is  in  the  possession  of  the  defendant  or  under  his  power 
and  control.  And  it  is  the  duty  of  the  Master  to  direct  the  defen- 
dant to  deliver  over  to  the  receiver  the  actual  possession  of  all  such 
property  in  such  manner  and  within  such  time  as  the  Master  may 
think  reasonable.  See  Parker  v.  Browning,  8  Paige,  C.  R.  388; 
also  Browning  v.  Bettis,  8  Id.  568  ;  and  Yeager  v.  Wallace,  44 
Penna.  St.  K.  296.  The  receiver's  right  to  the  possession  of  the 
property  is  limited  to  the  jurisdiction  in  which  he  is  appointed  ;  he 
cannot  recover  in  a  foreign  jurisdiction.  Booth  v.  Clark,  17  Howard, 
322  ;  Hunt  v.  The  Columbian  Insurance  Company,  55  Maine,  290  ; 
Harvey  x.  Varney,  104  Mass.  436-443;  infra,  Chap.  VII.,  note  as 
to  Actions  by  Receivers.  Where,  however,  the  title  to  the  property 
becomes  vested  in  the  receiver,  cither  by  conveyance  from  the  de- 
fendant or  by  the  terms  of  the  order,  it  may  be  asserted  in  a  foreign 
jurisdiction.     See  note  to  Chap.  VII.,  as  to  Actions  by  Receivers. 


EFFECT   OF    APPOINTMENT.  169 

date  of  his  appointment,  an  officer  and  representative 
of  the  court,^)1  but  he  is  not  legally  clothed  with 
that  character,  nor  able  to  perform  its  duties,  until  his 
recognizances  are  perfected. (6)2 

Parties  removed  from  Possession  by  the  Appointment. 
— The  effect  of  the  appointment  of  a  receiver  is  to 
remove  the  parties  to  the  suit  from  the  possession  of 
the  property.3  If  at  the  time  a  receiver  is  appointed, 
a  party  claiming  a  right  in  the  same  subject-matter, 
under  a  title  paramount  to  that  under  which  the  re- 
ceiver is  appointed,  is  in  possession  of  the  right  which 

(a)    Angel  v.  Smith,  9  Ves.  (b)    Wickens  v.   Townsend,  1 

391  ;  Owen  v.  Homen,  4  H.  L.  R.  &  M.  361 ;  Defries  v.  Creed, 

335  ;  Aston  v.  Heron,  2  M.  &  K.  34  L.  J.  Ch.  607. 
1032. 


1  Beverley  v.  Brooke,  4  G rattan,  208  ;  Lafayette  Bank  v.  Buck- 
ingham, 12  Ohio  St.  R.  425.  The  order  appointing  a  receiver  may, 
for  certain  purposes,  relate  back  to  the  time  of  the  decision  directing 
such  an  order,  so  as  to  give  the  court  control  over  the  subject-matter 
as  for  that  time.  Smith  v.  The  Nexo  York  Stage  Co.,  18  Abb.  Pr.  R. 
420  ;  28  How.  Pr.  R.  377  ;  Deming  v.  The  New  York  Marble  Co.,  1 2 
Abb.  Pr.  R.  66.  But  it  cannot  relate  back  as  against  third  persons  ; 
The  Artisan's  Barik  v.  Treadwell,  34  Barb.  559. 

2  See  In  the  matter  of  the  Eagle  Iron  Works,  8  Paige,  C.  R.  385  ; 
ante,  p.  158  ;  and  Noyes  v.  Rich,  52  Maine,  116. 

Where  there  is  a  conflict  between  two  receivers  appointed  by 
different  judges,  the  court,  in  order  to  determine  the  question  of 
priority,  will  inquire  into  fractions  of  a  day.  The  People  v.  The  Bank, 
53  Barb.  412.  The  receiver  of  the  party  who  obtained  the  first  judi- 
cial action,  the  first  service  of  papers,  the  first  granting  of  the  order 
for  the  appointment  of  a  receiver,  and  the  first  perfecting  of  the  ap- 
pointment by  the  execution,  approval,  and  filing  of  the  required  bond, 
takes  precedence  of  the  receiver  of  the  other  party,  who  was  merely 
the  first  to  take  actual  possession  of  the  assets  of  the  bank.  Id. 
See  also  Gelpeke  v.  Mil.  §•  Hor.  R.  R.  Co.,  11  Wisconsin,  457. 

3  Noonan  v.  McNab,  30  Wis.  277. 


170  EFFECT    OF    APPOINTMENT. 

he  claims,  the  appointment  of  the  receiver  leaves  him 
in  possession,(V)  but  parties  to  the  suit,  who  are  not  in 
possession  under  a  paramount  title,  are  removed  from 
possession  by  the  appointment  of  a  receiver.  If  a 
party  to  the  suit  be  appointed  receiver,  the  same  rule 
obtains.  In  a  case  where  the  chairman  of  the  trustees 
of  a  dock  company  was  appointed  receiver  of  the  tolls, 
it  was  held  that  he  had  removed  the  trustees  from  the 
possession  and  receipt  of  the  tolls.(d) 

"When  sequestrators  are  in  possession  of  lands  or 
tenements  in  question  in  the  cause,  the  appointment 
of  a  receiver  of  the  rents  and  profits  of  those  lands 
will  have  the  effect  of  discharging  the  sequestration. (e) 
So,  also,  the  appointment  of  a  receiver  in  a  suit  was 
held  to  put  an  end  to  the  power  of  a  trustee  appointed 
for  the  benefit  of  creditors  to  collect  the  rents.(/)x 

Right  not  affected  by  the  Appointment.— The  appoint- 
ment of  a  receiver,  however,  does  not  in  any  way 
affect  the  right  to  the  property.2     The  Court  of  Chan- 

(c)  Evelyn  v.  Lewis,  3  Ha.  (e)  Shaw  v.  Wright,  3  Ves.  22, 
472.  24;    Beeves  v.   Cox,  13  Ir.  Eq. 

[d)Ames  v.  Birkenhead  Docks,    247. 
20  Beav.  350.  (/)  McDonnell  v.  White,  11  H. 

L.  570. 


1  The  title  of  a  receiver  of  a  National  Bank,  under  the  Act  of  Con- 
gress of  June  3,  1864,  is  paramount  to  that  of  an  attaching  creditor, 
although  the  attachment  be  laid  upon  the  property  of  the  bank  be- 
fore the  appointment  of  a  receiver.  National  Bank  v.  Colby,  21 
Wal.  609. 

2  The  appointment  of  a  receiver  over  property  of  a  corporation  is 
not  a  dissolution  of  the  corporation.  Kincaid  v.  Dwindle,  59  New 
York,  548.     It  may,  however,  in  the  case  of  moneyed  corporations 


EFFECT   OF   APPOINTMENT.  171 

eery  in  a  suit  for  a  receiver  deals  with  the  possession 
only,  until  the  right  can  be  determined,  if  the  right 
be  the  subject-matter  in  dispute  between  the  parties, 
or  until  the  incumbrances  have  been  cleared  oft",  if 
the  appointment  has  been  made  at  the  suit  of  an  in- 
cumbrancer. Where  the  right  is  the  subject-matter 
in  dispute,  the  receiver  merely  holds  the  property  for 
whosoever  may  ultimately  appear  to  be  entitled  to  it. 
If  the  appointment  has  been  made  on  the  application 
of  an  incumbrancer,  the  court  restores  the  possession 
to  him  from  whom  it  was  taken,  after  the  charge  has 
been  cleared  off.  The  title  is  in  no  way  prejudiced  in 
theory  or  principle  by  the  appointment. (g)  In  Gresley 
v.  Adderley,{h)  a  receiver  was  appointed  to  keep  down 
the  interest  of  the  incumbrances  affecting  the  estates 
of  a  minor;  and  a  mortgagee  of  a  term  of  100  years, 
which  expired  shortly  after  the  appointment  of  the 
receiver,  having  applied  for  payment  of  the  charge 
out  of  the  rents  so  received,  was  refused,  on  the 
ground  that  when  the  court  interposed  to  receive  the 
rents  beyond  what  was  required  for  keeping  down  the 

(g)  Sharp  v.  Carter,  3  P.  W.  been  made,  and  he  continues  in 

379 ;  Skip  v.  Harivood,  3  Atk.  possession  after  the  date  of  his 

564 ;  Boehm  v.   Wood,  T.  &  R.  discharge,  his  possession   is   the 

345  ;  Lewis  v.  Lord  Zouche,  2  possession  of  the  party  entitled  : 

Sim.  392  ;  Portman  v.  Mill,  8  L.  Horlock  v.  Smith,  11  L.  J.  Oh. 

J.  Ch.  N.  S.  165  ;  Re  Butler,  13  157. 

Ir.  Ch.  456.     Where  an  order  for  (h)  1  Sw.  573. 
the  discharge  of  a  receiver  has 

virtually  operate  as  a  dissolution.  Bank  Commissioners  v.  Bank 
of  Buffalo,  6  Paige,  497  ;  Verplanck  v.  Mercantile  Insurance  Co., 
2  Paige,  438. 


172  EFFECT    OF   APPOINTMENT. 

interest  on  incumbrances,  all  the  surplus  rents  after 
payment  of  interest  were  received  for  the  benefit  of 
the  heir.  The  same  principle  was  acted  on  in  Thomas 
v.  Brigstockejj)  where  a  mortgagee  petitioned  to  be 
paid  the  rents  of  the  mortgaged  premises  which  had 
been  paid  into  court  by  a  receiver  in  a  suit  to  which 
the  mortgagee  was  no  party,  he  having  given  notice 
to  the  tenants  not  to  pay  their  rents,  it  was  held  that 
his  notice  to  the  tenants  could  not  divest  the  possession 
of  the  receiver  which  was  the  possession  of  those  who 
claimed  under  the  will  of  the  mortgagor.  So,  also,  the 
appointment  of  a  receiver  will  not  prevent  the  operation 
of  the  Statute  of  Limitations  against  the  rightful 
owner  out  of  possession  not  being  a  party  to  the 
suit  ;{k)  or  interrupt  the  possession  of  a  stranger  so  as 
to  prevent  the  Statute  of  Limitations  conferring  a 
title  on  him.(^)1 

The  possession  of  the  court  by  its  receiver  is  the 
possession  of  all  parties  to  the  suit  according  to  their 

(i)  4  Russ.  65.  401 ;  8  Ir.  0.  L.  432.     See  as  to 

(A)  Harrison  v.  Duignan,2  Dr.  payment  by  a  receiver  taking  the 

&  War.  295.     Comp.  Wrixon  v.  demand   out  of  the   Statute   of 

Vize,  3  Dr.  &  War.  123.  Limitations,  Whitely  v.  Loive,2o 

{I)  Groom  v.  Blake,  6  Ir.  C.  L.  Beav.  421  ;  2  D.  &  J.  704. 

1  See,  also,  in  this  connection,  Montgomery  v.  Merrill,  18  Mich. 
338.  When  the  property  consists  of  commercial  paper,  the  receiver 
docs  not  stand  in  the  position  of  a  bona  fide  holder  for  value,  for  he 
acquires  title  by  legal  process  and  not  in  the  regular  course  of  mer- 
cantile dealing.     Brig g a  v.  Merrill,  58  Barb.  .'>'.>'.). 

A  railroad  corporation  is  not  relieved  from  the  responsibilities  im- 
posed upon  it  by  its  charter,  because  of  the  appointment  of  a  receiver 
over  a  portion  of  the  road.     Railroad  Co.  v.  Broion,  17  Wal.  450. 


EFFECT   OF   APPOINTMENT.  173 

titles.(m)  The  appointment  of  a  receiver  is  not  for 
the  benefit  of  the  plaintiff  merely,  but  for  all  other 
persons  who  may  establish  rights  in  the  cause.  Moneys 
in  the  hands  of  a  receiver  are  in  custodia  legis  for  who- 
ever can  make  title  thereto.^)1  The  appointment  of  a 
receiver,  however,  is  for  the  benefit  of  incumbrancers 
only  so  far  as  expressed  to  be  for  their  benefit  and  as 
they  choose  to  avail  themselves  of  it.(o)  If  a  mort- 
gagee claiming  under  a  title  paramount  to  that  under 
which  the  receiver  was  appointed  suffers  the  receiver 
to  pay  away  the  surplus  rents  to  the  beneficial  owner, 
or  to  apply  them  for  purposes  other  than  the  satisfac- 
tion of  his  security,  he  is  not  entitled  to  a  retrospec- 
tive account  of  rents  and  profits.(p) 

(m)Re  Butter,  13  Ir.  Ch.  456  ;  accordingly:  Seymour  v.  Vernon, 

Bertrand  v.  Davies,   31    Beav.  19  L.  T.  58. 

436.  (o)  Gresleyv.  Adderley,lQw. 

(n)   Delaney  v.  Mansfield,  1  579  ;  Salt  v.  Lord  Donegal,  LI. 

Hog.  235.     Where  a  receiver  is  &  G.  temp.  Sug.  91.    Conip.  Pid- 

ordered  to  keep  up  certain  poli-  dock  v.  Boultbee,  16  L.  T.  N.  S. 

cies  of  insurance,  the    direction  837. 

must  be  taken  to  be  for  the  bene-  ( p)  Gresley  v.  Adderley,  1  Sw. 

fit  of  all  parties  who,  in  the  re-  576 ;  see  Thomas  v.  Brigstocke, 

suit  of  the  decision,  should  prove  4  Russ.  64;  Flight  v.  Camac,  4 

to  be  parties   really   interested,  W.  R.  664. 
and  the  outgoings  must  be  borne 

1  See  State  Bank  v.  The  Receivers,  2  Green,  C.  R.  273  ;  Green  v" 
Bostivick,  1  Sandf.  C.  R.  185.  A  receiver  who  is  ordered  to  pay  over 
money  cannot  set  off  his  individual  claims  against  the  party  to  whom 
he  is  directed  to  make  the  payment.  Johnson  v.  Gunter,  6  Bush 
(Ky.) ,  534.  No  discretion  is  allowed  him  as  to  the  disposition  of  the 
fund.  He  holds  it  subject  to  the  order  of  the  court,  and  to  be  paid 
to  whom  the  court  shall  adjudge  it.  Id.  The  circumstance  that  a 
receiver  is  afterwards  made  trustee  of  the  same  fund  in  insolvent 
proceedings,  does  not  take  away  the  authority  of  the  court,  by  which 
he  was  appointed  receiver,  over  the  fund.  Henry  v.  Kaufman,  24 
Maryl.  1. 


174  EFFECT    OF    APPOINTMENT. 

Incumbrancers  may  or  may  not  avail  themselves  of 
the  order  by  applying  to  the  receiver.  If  they  apply 
to  him,  they  will  be  paid  their  interest,  or  if  he  refuses 
or  neglects  to  pay  them,  they  may  complain  to  the 
court  of  such  neglect  or  refusal ;  but  if  they  neglect 
to  apply  for  the  interest,  it  is  to  be  presumed  that 
they  are  satisfied  with  the  security  they  have  both  for 
interest  and  principal.^)  The  direction  given  by  the 
court  to  the  receiver  to  keep  down  the  interest  of  the 
incumbrances,  has  not  the  effect  of  an  appropriation 
of  the  rents  and  profits  to  that  specific  purpose.  It  is 
given  without  the  least  view  to  the  interests  of  the 
real  and  personal  representatives.  It  is  given  partly 
injustice  to  the  incumbrancers,  that  they  may  not  be 
injured  by  the  act  of  the  court  in  taking  possession  of 
the  rents  and  profits  to  which  they  had  a  right  to 
resort  for  payment  of  their  interests,  partly  for  the 
benefit  of  the  estate  itself,  lest  the  incumbrancers, 
having  their  interest  stopped,  might  be  induced  to 
resort  to  proceedings  injurious  to  those  who  stand 
behind  them.(r) 

Receiver  considered  as  Agent  of  Party  entitled.— 
When  the  party  entitled  to  an  estate  over  which  a 
receiver  has  been  appointed  is  ascertained,  the  receiver 


(q)  Bertie  v.  Lord  Abingdon,  Camac,  4  W.    R.  664.     Comp. 

3  Mer.  567.    Comp.  Phldock  v.  Piddock  v.  Boultbee,  16  L.  T. 

Boullbee,  16  L.  T.  N.  S.  837.  N.  S.  837. 

(r)  3  Mer.  567  ;  see  Flight  v. 


EFFECT    OF    APPOINTMENT.  175 

will  be  considered  as  his  receiver.(s)1  Where  accord- 
ingly a  receiver  was  appointed  in  a  suit  for  specific 
performance  at  the  suit  of  a  vendor,  and  the  purchaser 
was  compelled  to  accept  the  title,  it  was  held  that  the 
receiver  must  be  considered  as  his  receiver.(^)  In  a 
case,  however,  where  a  receiver  had  been  appointed  in 
consequence  of  the  inability  of  the  vendor  of  an  estate, 
sold  under  a  decree,  to  make  out  his  title,  the  court 
was  of  opinion  that  the  expenses  of  a  receiver  ought 
not  to  be  borne  by  the  purchaser,  and  directed  that 
they  should  be  repaid  to  him  out  of  a  fund  in  court, 
together  with  the  costs  of  the  application. (w) 

Loss  arising  from  Default  of  Solicitor  must  be  borne 
by  the  Estate.— A  receiver  appointed  by  the  court, 
being  appointed  on  behalf  and  for  the  benefit  of  all 
persons  interested,  parties  to  the  suit,(v)  if  a  loss  arises 
from  the  default  of  a  receiver  appointed  by  the  court, 
the  estate  must  bear  it  as  between  the  parties  to  the 
suit.(x) 

(s)  Boehm  v.  Wood,  T.  &  R.  (r)  Davis  v.  Duke  of  Marl- 
Mo;  Be  Butler,  13  Ir.  Ch.  456  ;  borough,  2  Sw.  118  ;  Bainbngge 
see  Bigge  v.  Bowater,  3  Bro.  C.  v.  Blair,  3  Beav.  421;  Bertrand 
C.  365.  v.  Davies,  31  Beav.  436  ;  Fraser 

(t)  Boehm  v.  Wood,  T.  &  R.  v.  Burgess,  13  Moo.  P.  C.  314 ; 

345;  see  Re  Butler,  13  Ir.  Ch.  see  Neate  v.  Pink,  3  Mac.  &  G. 

456.  476. 

{u)  McCleod  v.  Phelps,  2  Jur.  (x)  Hutchinson  v. 3Iassareene, 

962.  2  Ba.  &  Be.  55. 

1  Ellicott  v.  Warford,  4  Maryl.  85;  Ellicott  v.  U.  S.  Ins.  Co.,  7 
Gill,  307  ;  Field  v.  Jones,  11  Georgia,  416  ;  State  Bank  v.  77ie 
Receivers,  2  Green,  C.  R.  266. 


176  EFFECT    OF    APPOINTMENT. 

Rents,  &c,  bound  from  Date  of  Appointment.— The 
rents  and  profits  of  the  estate  over  which  a  receiver 
has  been  appointed  are,  as  far  as  respects  parties  to 
the  suit,  bound  from  the  date  of  the  order  for  the 
appointment^?/)1  If  a  solicitor  in  the  cause  has  received 
rents  without  the  authority  of  the  court,  he  must  pay 
them  over  to  the  receiver  appointed  therein,  although 
he  may  not  have  been  actually  clothed  with  the  cha- 
racter of  receiver  at  the  time  the  rents  were  received. 
The  solicitor  cannot  be  permitted  to  set  up  a  lien  on 
them  for  his  costs.(^) 

If  the  tenant  for  life  of  a  mortgaged  estate  with 
power  to  lease,  exercise  the  power  pending  a  foreclosure 
suit,  and  after  the  appointment  of  a  receiver,  the  lessees 
are  considered,  as  against  prior  incumbrancers,  as 
tenants  from  year  to  year  to  the  receivers.(a) 

The  order  appointing  a  receiver  is,  however,  an  order 
for  the  benefit  of  the  parties  to  the  suit.(6)  The  order 
on  tenants  to  pay  their  rents  to  the  receiver  attaches 
all  rents  in  their  hands  unpaid  at  the  time  of  service. 

(y)  Lloyd  v.Mason,  2  M.  &  is  improper;  Davenport  v.  Moss, 

C.  487;  Codringtonv. Johnstone,  14  W.  R.  453. 

1  Beav.  520.  (a)  Lord  Mansfield  v.  Hamil- 

(z)    Wickens  v.   Townsend,  1  ton,  2  Sch.  &  Lef.  28. 

R.  &   ML  361.     The  retainer  of  (b)  Defries  v.  Creed,  34  L.  J. 

his  debt  by  an  executor  against  a  Ch.  G07. 
receiver  appointed  by  the  court 

1  The  title  of  a  receiver  appointed  overchosesin  action  alleged  to 
be  fraudulently  assigned  dates  from  the  filing  of  the  bill,  and  the 
debtor  in  the  chose  inaction  cannot  set  off  a  cross  judgment  obtained 
by  him  since  that  date.  Clark  v.  Drockway,  1  Abb.  App.  Dec. 
351. 


POSSESSION   OF   RECEIVER.  177 

As  to  rents  which  have  been  paid  by  them  prior  to 
the  service,  they  are  not  answerable.(c) 

Interference  by  Third  Parties  with  the  Possession  of 
the  Receiver.— When  the  court  has  appointed  a  receiver 
and  the  receiver  is  in  possession,  his  possession  is  the 
possession  of  the  court,  and  may  not  be  disturbed 
without  the  leave  of  the  court.(^)1  Where  the  court 
has  taken  possession  of  property  by  its  receiver,  if 
any  one,  whoever  he  be,  disturb  the  possession  of  the 
receiver,  it  holds  that  person  as  guilty  of  a  contempt 
of  court,  and  liable  to  be  imprisoned  for  that  con- 
tempt.^)2    The  court  will  not  allow  the  possession  of 

(c)  Daly  v.  Blake,  cit.  Smith  kenhead  Docks,  20  Beav.  353  ; 
on  Rec.  27.  Defries  v.   Creed,  34  L.  J.  Ch. 

(d)  Angel  v.  Smith,  9  Ves.     607. 

335  ;  Hutchinson  v.  Massareene,  (e)  Fripp  v.  Bridgewater,  frc, 
2  Ba.  &  Be.  55  ;  Aston  v.  Heron,  Raihoay  Co.,  3  W.  R.  356  ; 
2  M.  &  K.  391 ;  Ames  v.  Bir-    Lane  v.  Sterne,  3  Giff.  629. 

1  The  court  will  not  permit  this  possession  to  be  disturbed  by  an 
execution.  Robinson  v.  The  Atlantic  and  Great  Western  Raihoay 
Co.,  66  Penna.  St.  R.  160 ;  Albany  City  Bank  v.  Schermerhorn,  9 
Paige,  C.  R.  372;  Wiswall  v.  Sampson,  14  Howard,  52.  See  also 
National  Bank  v.  Colby,  21  Wal.  609. 

2  An  assignee  in  bankruptcy  is  so  liable.  Clark  v.  Bininger,  9 
Am.  Law  Reg.  (N.  S.)  304 ;  Watkins  v.  Pinkney,  3  Edw.  C.  R.  533 
(and  see  Davis  v.  Alabama  and  Florida  R.  R.  Co.,  13  Nat.  Bank 
Reg.  258;  S.  C,  1  Woods,  661).  And  so  is  a  landlord  distraining 
for  rent.  Noe  v.  Gibson,  7  Paige,  C.  R.  513 ;  and  see  the  Matter 
of  Merritt,  5  Id.  131 ;  In  the  matter  of  Cohen  and  Jones,  5  Cal. 
494;  Parker  v.  Browning,  8  Paige,  C.  R.  388.  But  the  defendant 
in  a  creditor's  bill  is  not  liable  to  process  for  contempt  for  refusing 
to  deliver  to  the  receiver  property  claimed  by  a  third  party,  in  the 
absence  of  a  decision  by  the  master  (to  whom  the  cause  was  referred 
for  the  purpose  of  appointing  a  receiver),  that  the  defendant  had 

12 


178  POSSESSSION   OF   RECEIVER. 

its  receiver  to  be  interfered  with  or  disturbed  by  any- 
one, whether  claiming  paramount  to  or  under  the 
right  which  the  receiver  was  appointed  to  protect.^/")1 
A  man  who  thinks  he  has  a  right  paramount  to  that 
of  the  receiver,  must,  before  he  presumes  to  take  any 
steps  of  his  own  motion,  apply  to  the  court  for  leave 

(/)  Evelyn  v.  Lewis,  3  Ha.    glian  Railway  Co.,  3  Mac.  &  G. 
475;     Wadmore  v.    Trevanion,     114. 
cit.  lb.  473;  Russel  v.  East  An- 

such  a  control  and  possession  of  the  goods  as  to  entitle  the  receiver 
to  a  delivery  thereof  without  the  consent  of  the  claimant.  Cassi- 
lear  v.  Simons,  8  Paige,  C.  R.  273.  And  the  rights  of  a  receiver 
appointed  by  a  State  Court  under  an  attachment  by  mesne  process, 
are  subordinate  to  those  of  an  assignee  in  bankruptcy,  the  effect  of 
the  bankrupt  proceedings  having  been  that  the  mesne  process  of  the 
State  Court  was  dissolved.  Miller  v.  Boivles,  10  Nat.  B.  R.  515 
(see  Miller  v.  Bowles,  58  N.  Y.  253).  See  also  In  re  Whipple,  8 
Chicago  Leg.  N.  134. 

'  But  if  the  property  is  in  possession  of  a  third  person  who  claims 
the  right  to  retain  it,  the  receiver  must  either  proceed  by  suit  in  the 
ordinary  way  to  try  his  right  to  it,  or  the  complainant  should  make 
such  third  person  a  party  to  the  suit,  and  apply  to  have  the  receiver- 
ship extended  to  the  property  in  his  hands  ;  so  that  an  order  for  the 
delivery  of  the  property  may  be  made  which  will  be  binding  upon 
him,  and  which  may  be  enforced  by  process  of  contempt  if  it  is  not 
obeyed.  Parker  v.  Browning,  8  Paige,  388,  390  Hence  it  has 
been  ruled  in  a  foreclosure  suit,  that  the  assignee  of  the  equity  of 
redemption  who  has  not  been  made  a  party  to  the  suit  was  not  liable 
to  process  for  contempt  for  collecting  the  rents  of  the  mortgaged 
premises  after  a  receiver  had  been  appointed.  Bowery  Savings 
Bank  v.  Richards,  3  Hun,  3C6  ;  see  further  on  this  subject.  The 
Vermont  and  Canada  R.  R.  Co.  v.  The  Vermont  Central  R.  R. 
Co.,  46  Verm.  792.  A  court  will  not  interfere  with  the  possession 
of  a  receiver  duly  appointed  by  another  court  of  competent  juris- 
diction. The  Milwaukee  and  St.  Raid's  R.  R.  Co.  v.  The  Mil- 
waukee  and  Minnesota  R.  R.  Co.,  20  Wisconsin,  165  ;  and  note  to 
page  13,  ante. 


POSSESSION   OP   RECEIVER.  179 

to  assert  his  right  against  the  receiver.^)  A  receiver, 
indeed,  appointed  to  get  in  property,  part  of  which  he 
finds  in  the  possession  of  another  receiver,  ought  not 
to  take  proceedings  to  deprive  the  latter  of  such  pos- 
session without  the  authority  of  the  court.  He,  or 
the  parties  at  whose  instance  he  was  appointed,  should 
ask  for  the  direction  of  the  court  how  to  proceed. (A) 

It  is  immaterial  that  the  order  appointing  a  receiver 
may  have  been  improper  or  erroneous.  It  is  not  com- 
petent for  any  one  to  interfere  with  the  possession  of 
a  receiver  on  the  ground  that  the  order  appointing 
him  ought  not  to  have  been  made.  It  is  enough  that 
it  be  a  subsisting  order.  Parties  who  feel  aggrieved 
by  an  order  of  the  court  must  take  a  proper  course 
to  question  its  validity,  but  while  it  lasts  it  must  be 
obeyed,  (i)1 

The  court  requires  and  insists  that  applications 
should  be  made  to  it  for  permission  to  take  possession 
of  any  property  of  which  the  receiver  has  taken,  or  is 
directed  to  take,  possession.  The  rule  is  not  confined 
to  property  actually  in  the  hands  of  a  receiver.     The 

(g)   lb.  Hawkins  v.   Gather-  [i)  Russell  v.  East  Anglian 

cole,  1  Drew,  17;  Randfield  v.  Railway  Co.,  3  Mac.  &  G.  117  ; 

Randfield,  1  Dr.  &  Sra.  314.  Ames  v.  Birkenhead  Docks,  20 

(7i)  Ward  v.  Swift,  6  Ha.  312.  Beav.  353. 

1  The  debtors  of  a  National  Bank,  when  sued  by  a  receiver  ap- 
pointed under  the  Act  of  Congress,  cannot  inquire  into  the  legality 
of  his  appointment.  It  is  sufficient  for  the  purposes  of  such  a  suit 
that  he  has  been  appointed  and  is  receiver  in  fact.  As  to  debtors, 
the  action  of  the  comptroller  in  making  the  appointment  is  conclu- 
sive until  set  aside  on  the  application  of  the  bank.  Cadle  v.  Baker, 
20  "Wal.  650.     bee  also  In  the  matter  of  Day,  34  "Wise.  638. 


180  POSSESSION   OF   RECEIVER. 

court  will  not  permit  any  one,  without  its  sanction 
and  authority,  to  intercept  or  prevent  payment  to  the 
receiver  of  any  property  which  he  has  been  appointed 
to  receive, though  it  may  not  be  actually  in  his  hands. (k)1 
The  possession  of  a  receiver  appointed  over  an  estate 
is  not  affected  by  notice  given  by  a  mortgagee  who 
alleges  that  his  title  is  prior  to  that  under  which  the 
receiver  claims  to  the  tenants  to  pay  their  rents  to 
him.(0 

A  receiver  appointed  by  the  Court  of  Chancery  can- 
not, on  the  ground  that  his  appointment  has  been 
improper,  be  called  upon  to  interplead  in  a  court  of 
law  ;  but  he  may,  if  summoned,  appear  for  the  purpose 
of  asserting  his  right,  and  denying  the  right  of  any 
other  court  to  interfere  with  his  possession. (m) 

If  a  receiver  improperly  submit  to  an  order  made  by 
a  court  of  law,  and  pay  money  in  his  hands  contrary 


(k)     Ames     v.      Birkenhead  (m)  Russell  v.  East  Anglian 

Docks,  20  Beav.  353.  Railway  Co.,  3  Mac.  &  G.  115, 

(/)   Thomas   v.  Brigstocke,  4  123. 
Euss.  64. 

1  But  the  decree  of  a  Court  of  Chancery  appointing  a  receiver, 
entitles  him  to  its  protection  only  in  the  possession  of  property  which 
he  is  authorized  or  directed  by  the  decree  to  take  possession  of. 
When  he  assumes  to  take  or  hold  possession  of  property  not  em- 
braced in  the  decree  appointing  him,  and  to  which  the  debtor  never 
had  any  title,  he  is  not  acting  as  the  representative  or  officer  of  the 
Court  of  Chancery,  but  is  a  mere  trespasser,  and  the  rightful  owner 
of  the  property  may  sue  him  in  any  appropriate  form  of  action  for 
damages,  or  to  recover  possession  of  the  property  illegally  taken  or 
detained.  Hills  v.  Parker,  111  Mass.  508.  The  same  rule  has  also 
been  applied  to  an  assignee  in  bankruptcy.  See  Leighton  v.  liar- 
vjood,  1 L 1  Mass.  67. 


POSSESSION    OF   RECEIVER.  181 

to  the  order  of  the  court,  the  person  to  whom  it  has 
been  paid  will  be  ordered  to  repay  it,  and  the  receiver 
may  be  liable  to  pay  the  costs  of  the  motion.  The 
court  never  allows  any  person  to  interfere  either  with 
money  or  property  in  the  hands  of  its  receiver  without 
leave,  whether  it  is  done  by  the  consent  or  submission 
of  the  receiver,  or  by  compulsory  process  against  him. 
All  moneys  which  come  to  the  hands  of  a  receiver  by 
the  order  of  the  court,  enabling  him  to  receive,  and 
entitling  him  to  give  a  good  discharge  to  the  persons 
paying  them,  are  moneys  belonging  to  the  Court  of 
Chancery,  and  the  receiver  can  only  discharge  himself 
by  paying  them  in  obedience  to  the  direction  and  order 
of  the  court.  A  judgment-creditor  cannot,  without 
leave,  attach  under  a  garnishee  order  under  the  Com- 
mon Law  Procedure  Act,  1854,  moneys  in  the  hands 
of  a  receiver  which  have  been  directed  to  be  paid  by 
him  to  the  judgment-debtor.^)1  It  is  not  necessary 
to  wait  for  the  passing  of  a  receiver's  accounts  before 
applying  to  the  court  to  prevent  him  from  misapplying 
moneys  in  his  hands.(o) 

What  constitutes  Disturbance  of  a  Receiver.— The  rule 
that  the  possession  of  a  receiver  may  not  be  disturbed 
without  leave,  does  not,  however,  apply,  as  far  at  least 

(n)  Be  Winton  v.  Mayor,  fyc.     of  Brecon,  28  Beav.  200,  203. 

(o)  lb. 

'  See  Field  v.  Jones,  11  Georgia,  417  ;  Taylor  v.  Gillean,  23  Tex. 
508 ;  Skinner  v.  Maxwell,  68  North  Carol.  404  ;  Martin  v.  Bavis, 
21  Iowa,  535 ;   Glenn  v.  Gill,  2  Maryl.  1. 


182  POSSESSION   OF   RECEIVER. 

as  third  parties  are  concerned,  until  a  receiver  has 
been  actually  appointed,  and  is  in  actual  possession. 
It  is  not  enough  that  an  order  has  been  made  directing 
the  appointment  of  a  receiver.  Until  the  appointment 
has  been  perfected,  and  the  receiver  is  actually  in 
possession,  a  creditor  is  not  debarred  from  proceeding 
to  execution.1  The  order  appointing  a  receiver  is  for 
the  benefit  of  parties  to  the  suit.2  It  does  not  affect 
third  parties  until  the  appointment  is  completed  and 
perfected. (^)3 

Nor  is  there  disturbance  of  a  receiver  unless  the 
order  for  the  appointment  of  a  receiver  states  so  dis- 
tinctly on  the  face  of  it,  over  what  property  the  receiver 
is  appointed,  that  it  may  be  known  what  is  the  pro- 
perty that  he  is  in  possession  of.(y)  Hence,  where  a 
receiver  was  appointed  "  of  the  income  of  the  out- 
standing trust  property  in  the  pleadings  mentioned," 
and  the  receiver  entered  into  and  remained  in  posses- 


(p)  Defries  v.  Creed,  34  L.  J.  (q)  Crow  v.  Wood,  13  Bcav. 
Ch.  607.  271. 

1  Davenport  v.  Kelly,  42  New  York,  193  ;  Rankin  v.  JIarwood, 
2  Phillips,  22  ;  Ellicott  v.  The  United  States  Ins.  Co.,  7  Gill,  307  ; 
Waring  v.  Robinson,  Hoffman's  C.  R.  524 ;  Van  Alstyne  v.  Cook,  25 
New  York,  489  ;  Becker  v.  Torrance,  31  New  York,  631.  See  also 
in  tli is  connection,  Fessenden  v.  Woods,  3  Bosw.  550. 

«  Howell  v.  Ripley,  10  Paige,  C.  R.  46. 

8  In  Tin-  Albany  City  Bank  v.  SchermerJiom,  9  Paige,  372, pro- 
ceedings for  contempt  were  instituted  against  two  sheriffs  for  levying 
upon  certain  property.  The  sheriffs  were  held  not  to  be  in  contempt, 
as  it  appeared  ultimately  that  the  possession  of  the  receiver  had 
DOl  been  actually  disturbed.  (See  10  Paige,  0.  R.  263.)  Put  1  lie 
doctrine  laid  down  by  the  court  was  substantially  the  same  as  that 
Btated  in  the  text. 


POSSESSION   OF   RECEIVER.  183 

sion  of  the  real  estate  for  several  years,  and  the  tenants 
attorned  to  him,  an  application  to  restrain  the  legal 
owner  from  proceeding  against  the  tenants  without 
the  leave  of  the  court  was  refused  with  costs.  The 
appointment  should  have  been  over  the  rents  of  the 
particular  property,  and  should  have  been  followed 
by  a  direction  to  the  owner  to  deliver  possession,  or 
that  the  tenants  should  attorn.(r) 

To  constitute  disturbance  of  a  receiver,  it  is  not 
necessary  that  the  party  complained  of  should  be 
about  to  turn  him  out  of  possession.  The  court  will 
not  allow  the  first  step  to  be  taken  in  an  action  of 
ejectment  against  a  receiver  by  any  party,  without  an 
application  having  been  first  made  to  the  court  for 
permission  to  do  so.(s) 

Parties  who  claim  under  a  Right  paramount  to  the 
Receiver  must  apply  to  the  Court.— If  at  the  time  a 
receiver  is  appointed,  a  party  claiming  a  right  in  the 
same  subject-matter  is  in  possession  of  the  right  which 
he  claims,  the  appointment  of  the  receiver  leaves  him 
in  the  possession  of  the  right,  and  does  not  interfere 
with  the  exercise  of  it.(0  If,  on  the  other  hand,  the 
claimant  was  out  of  possession,  he  must  apply  to  the 
court  before  he  institutes  any  legal  proceedings  affect- 
ing the  possession  which  the  receiver  has  acquired.^) 
The  rule  applies  even  to  cases  where  the  receiver  has 

(r)  lb. ;  supra,  p.  14.  573;    Evelyn  v.    Lewis,   3   Ha. 

(s)  Hawkins  v.  Gathercole,  1  472. 

Drew.  18.  («)    Evelyn  v.  Lewis,  3  Ha. 

(t)  Johnes  v.  Claughton,  Jac.  472. 


18-4  POSSESSION    OF    RECEIVER. 

been  appointed  without  prejudice  to  the  right  of 
persons  having  prior  charges.^)  The  rule  applies  to 
cases  where  a  receiver  has  been  appointed  over  the 
estate  of  a  tenant  in  possession.  The  appointment  of 
a  receiver  as  against  the  estate  of  a  tenant  does  not 
affect  the  rights  of  the  landlord,  but  he  will  not  be 
permitted  to  exercise  those  rights  without  first  obtain- 
ing the  leave  of  the  court.  Before  distraining  he 
should  come  to  the  court  and  ask  for  authority  to 
distrain,  notwithstanding  the  presence  of  a  receiver^?/)1 
Parties  whose  rights  are  interfered  with  by  having 
a  receiver  put  in  their  way,  may,  on  making  a  proper 
application    to    the   court,  obtain  all  that  they  may 

(a;)  Bryan  v.  Cormick,  1  Cox.  occupiers  for  rent,  without  any 

422  ;  see  Langton  v.  Langton,  7  order  for  the  purpose.     Furlong 

D.  M.  &  G.  30.  on  Land,  and  Ten,  744.     Where 

(y)  Sutton  v.  Rees,  9  Jur.  N.  a  receiver  is  appointed  of  lease- 
S.  456  ;  see  McDonnell  v.  Clarke,  holds,  and  the  landlord  gives  him 
2  Hog.  109  ;  Walsh  v.  Walsh,  1  notice  of  a  claim  for  rent,  but 
Ir.  Eq.  209.  Where,  however,  a  takes  no  other  steps,  and  the  re- 
receiver  is  placed  over  the  estate  ceiver  sells  the  furniture,  the  land- 
of  an  inheritor,  or  superior  land-  lord  has  no  priority  over  other 
lord,  and  the  lands  are  ocuupied  creditors  in  the  proceeds  of  the 
by  under-tenants,  the  interme-  sale  :  Sutton  v.  Rees,  9  Jur.  N. 
diate    tenant   may  distrain    the  S.  456. 

1  See  Everett  v.  Neff,  28  Maryl.  187,  and  Noev.  Gibson,  7  Paige, 
C.  R.  513.  But  where  the  receiver  enters  into  possession  of  the  de- 
mised premises,  or  otherwise  indicates  his  election  to  take  the  term, 
he  will  (it  is  said)  take  it  cum  onere,  and  the  landlord  could  (under 
the  statute)  follow  ^oods  removed  from  the  premises,  as  in  the  case 
of  an  ordinary  tenant.  Hut  where  the  receiver  has  done  no  act  indi- 
cating an  acceptance  of  the  term,  but  simply  takes  possession  of  the 
goods,  and  removes  them,  the  landlord  cannot  follow  them.  Martin 
v.  Black,  9  Paige,  C.  R.  641-644,  affirming  the  decision  of  the  Vice- 
Chancellor  iu  3  Edw.  C.  R.  580.  See  also  Matter  of  Brown,  3  Edw. 
C.  R.  384. 


POSSESSION   OF   RECEIVER.  185 

justly  require.(z)  The  court  has  the  power,  and  will 
always  take  care  to  give  a  party  who  applies  in  a 
regular  manner  for  the  protection  of  his  rights  the 
means  of  obtaining  justice,  and  will  even  assist  him 
in  asserting  that  right  and  having  the  benefit  of  it.(a)1 
The  proper  course  for  a  party  to  adopt  who  claims 
a  right  paramount  to  that  of  the  receiver,  or  rather 
to  that  of  the  party  obtaining  the  receiver,  and  is 
prejudiced  by  having  the  receiver  put  in  his  way,  is 
to  apply  to  the  court  for  leave  to  proceed,  notwith- 
standing the  possession  of  the  receiver,  or  to  come  iu 
and  be  examined  jpro  interesse  suo.(b)2    The  application 

(z)    Angel    v.    Smith,  9  Ves.  v.  Haivorth,  3  Beav.  428;  Russell 

335;  Russell   v.  East  Anglian  v.  East  Anglian  Railway  Co.,  3 

Raihoay  Co.,  3  Mac.  &  G.  117.  Mac.&  G.  117;  Fowler  v. Hay nes, 

(a)  Evelyn  v.  Lewis,  3  Ha.  2  N.  R.  156.  In  a  case  where  a 
475  ;  Hawkins  v.  Gathercole,  1  receiver  had  been  appointed  in  a 
Drew.  17.  suit  instituted  by  incumbrancers, 

(b)  Hunt  v.  Priest,  2  Dick,  it  was  held  that  a  judgment- 
540  ;  Gomme  v.  West,  lb.  472 ;  creditor  might  file  a  bill  against 
Anon., 6Ves. 281;  Angel  \. Smith,  the  owner  and  the  receiver  to 
9  Ves.  345  ;  Brooks  v.  G reathed,  have  his  debts  paid  out  of  the 
1  J. &  W.  178  ;  Johnes  v.  Claugh-  surplus.  The  incumbrancers  in 
ton,  Jac.  573  ;  Smith  v.  Lord  the  former  suit  need  not  be  made 
Effingham,  2  Beav.  232  ;  Gooch  parties;  Lewis  v.  Lord  Zouche, 

1  In  Vincent  v.  Parker,  7  Paige,  C.  R.  65,  a  receiver  was  appoint- 
ed of  the  rents  and  profits  of  certain  real  estate,  to  a  portion  of  which 
one  Halbert  and  his  wife  were  entitled  for  life,  in  right  of  the  wife. 
This  portion  was  not  in  controversy  in  the  suit  in  which  the  receiver 
was  appointed.  A  dispute  arose  between  Halbert  and  his  wife  as  to 
this  portion  of  the  fund  ;  and  the  court  directed  the  amount  to  be 
paid  into  court  by  the  receiver,  to  the  credit  of  the  suit  between  the 
husband  and  wife. 

2  See  DeGruot  v.  Jay,  30  Barb.  483. 


186 


POSSESSION   OF   RECEIVER. 


may  be  made  on  summons  by  motion  or  on  petitionee) 
with  notice,(<0  and  is  usually  framed  in  the  alterna- 
tive, that  the  receiver  may  pay  the  amount  of  the 
claimant's  demand,  or  that  the  latter  may  be  allowed 
to  proceed  .(e) 

It  was  held  in  an  Irish  case  that  a  party  who  had, 
without  the  leave  of  the  court,  instituted  proceedings 
at  law  to  recover  lands  in  the  possession  of  a  receiver, 
cannot  come  to  the  court  for  leave  to  continue  his  pro- 
ceedings.(/)  If  a  special  case,  however,  be  made  out, 
the  court  will  allow  a  party  to  continue  an  action, 
notwithstanding  that  it  has  been  commenced  after 
the  appointment  of  a  receiver,  and  that  the  leave  of 


2  Sim.  388.  So,  also,  in  a  case 
where  a  receiver  had  been  ap- 
pointed at  the  suit  of  certain  in- 
cumbrancers, in  which  suit  the 
first  incumbrancer  was  not  a 
party,  it  was  held  that  a  bill 
would  lie  by  him  against  the  re- 
ceiver and  the  several  parties  to 
the  suit  to  establish  his  priority  : 
Smith  v.  Lord  Effingham,  2 
Beav.  232.  In  a  later  stage  of 
tlic  same  case,  lb.  7  Beav.  37  1,  it. 
was  said  by  Lord  Langdale  that 
u  receiver  is  not  a  necessary  party 
tn  -.i  bill  by  a  first  incumbrancer 
ililisli  his  right,  and  that 
there  wa   rea  ion  to  doubl  whether 

even  he  was  a  proper  party.  It 
is  irregular  to  apply  for  an  in- 
junction to  restrain  a  receiver 
from  paying  moneys  to  other  in« 
enmbrancers  (2  Him  v.  232),  or  to 
restrain  a  person  from  receiving 
moneys  from  a  receiver.     lb.  ."><>7. 


(r)  Where  the  application  is 
made  by  a  person  not  a  party  to 
the  cause,  and  the  property  over 
which  the  receiver  has  been  ap- 
pointed is  landed  property,  the 
proper  mode  of  proceeding  is  by 
petition  :  Richards  v.  Richards. 
John.  255. 

(d)  See  as  to  form  of  notice  of 
motion  or  summons  for  examina- 
tion pro  interesse  suo,  3  Dan. 
Oh.  1'r.  1745. 

(e)  Angel  v.  Smith,  9  Ves.335  ; 
Dixonv.Smith,l  Sw.457 ;  Brooks 
v.  Oreathed,  1  J.  &  W.  176; 
(,'ooch  v.  JT«w<>rth,'.\  I'.rav.  128; 
Potts  v.  Warwick  and  Birming- 
ham <'anal  Co.,  Kay,  148  ;  Rim- 
sell  v.  East  Anglian  Railway 
Co.,  3  Mac  &  <;.  L25. 

(/)  Lees  v.  Waring,  1  Hog. 
216.  Comp.  Townsend  v.  Somer- 
villc,  lb.  100. 


POSSESSION   OF    RECEIVER.  187 

the  court  had  not  in  the  first  instance  been  applied 
for  in  reference  to  the  action.^)1  In  a  case  where 
ejectment  was  brought  against  a  receiver,  although  it 
was  without  the  previous  leave  of  the  court,  the  court 
directed  an  inquiry  whether  it  would  be  for  the 
benefit  of  the  parties  interested,  who  were  adults,  that 
the  receiver  should  defend  the  ejectment,  and  charge 
the  expenses  in  his  accounts.(A) 

If  a  man  has  already  brought  an  action  against  a 
receiver,  or  has  otherwise  interfered  with  the  posses- 
sion of  a  receiver  without  the  leave  of  the  court,  the 
order  which  retains  these  acts  will  also  give  leave  or 
direct  that  he  be  examined  pro  interesse  suo,  the  plain- 
tiff in  the  cause  being  directed  to  exhibit  inter- 
rogatories^?)2 

The  inquiry  as  to  interest  is  conducted  in  the  same 
manner  as  it  would  be  if  the  property  were  in  the 
possession  of  sequestrators  under  a  commission  of 
sequestration.(T)  If  the  court,  on  examining  the  title, 
is  satisfied  that  the  right  of  the  claimant  is  clear,  it 
will  at  once  decide  the  matter  in  his  favor,  without 
directing  an  inquiry,  and  order  the  receiver  to  pay 
him  what  he  claims,(?)  or  give  the  claimant  leave  to 

{g)   Gotver  v.  Bennett,  9  L.  T.  (&)  Dan.  Ch.  Pr.  952,  1580. 

310  ;  see  Aston  v.  Heron,  2  M.  &  {I)  Dixon  v.  Smith,  1  Sw.  457  ; 

K.  397.  Russell  v.  East  Anglian  Rail- 

{h)  Anon.,  6  Ves.  287.  way  Co.,  3  Mac.  &G.  118  ;  Rand- 

(i)  Johnes  v.   Claughton,  Jac.  field  v.  Randfield,  1  Dr.  &  Sm. 

573.  314,  per  Kindersley,  Y.  C;   see 


1  See  post,  p.  205,  note. 

2  Parker  v.  Browning,  8  Paige,  C.  R.  391. 


188 


POSSESSION   OF   RECEIVER. 


enforce  his  remedy  at  law,  notwithstanding  the 
possession  of  the  receiver.(?w)  Thus,  leave  was  given 
on  the  petition  of  a  judgment-creditor,  to  sue  out  an 
elegit  against  property  in  the  possession  of  a  re- 
ceiver.^) So  also,  where  a  party  wishes  to  distrain 
for  rent  on  property  in  the  possession  of  a  receiver, 
the  court,  on  being  satisfied  that  the  legal  right  of 
distress  is  paramount  to  the  title  of  the  party  for 
whose  benefit  the  receiver  was  appointed,  will  allow 
the  distress  to  be  made.(o)  So  also,  where  a  rent- 
charge  created  by  a  railway  company  under  the  Lands 
Clauses  Act,  had  been  reserved  to  a  landowner,  the 
court  gave  him  liberty  to  distrain,  notwithstanding  a 
receiver  had  been  appointed  of  the  tolls  of  the  com- 
pany, in  a  suit  instituted  by  the  owner  of  a  similar 
rent-charge,  on  behalf  of  all  the  other  owners  of 
similar  rent-charges  who  should  come  in  and  con- 
tribute to  the  expenses  of  the  suit.(p)  So  also  in  a 
case  where  it  was  held  that  a  receiver  ought  not  to 


Ex  parte  Thurgood,  18  L.  T.  N. 
S.  18,  where  damages  for  injuries 
sustained  by  a  collision  had  been 
recovered  against  a  railway  com- 
pany over  which  a  receiver  had 
been  appointed. 

(m)  Where  a  party,  claiming 
under  a  title  paramount  i<>  that 

under   which   the   receiver  ifl  ;ip- 

pointed,  makes  out  tin-  title  lie 
alleges,  and  ifl  permitted  t<»  en- 
force hia  remedy  at  law,  lie  will 
i.c  allowed  the  coats  of  the  appli 
cat  i"ii :  Eyton  v.  I>>  ribigh,  jrc, 
Railway  ' '<<.,  I..  &.  G  Eq.  l  I  ;  see 


Walsh  v.  Walsh,  1  Ir.  Eq.  209. 
Comp.  McDonnel  v.  Clarke,  2 
Bog.  109. 

(it)  Gooch  v.  Haworth,2  Beav. 
428;  Potts  v.  Warwick  and  Bir- 
mingham  Canal  Co.,   Kay,  142. 

(o)  Sec  Cramer  v.  Griffith,Z 
Ir.  Eq.  232  ;  Russell  v.  East  An- 
glian Railway  ''<>...'!  Mac. &  <J. 
11-;  Suttonv.  Kees,  'JJur.  N.  S. 
456. 

(]>)  Eyton  v.  Denbigh,  jpc, 
/,'. itlway  Co.,  I-  R.  6  Eq.  1 l, 
C.  L6  W.  It.  928. 


POSSESSION   OF   RECEIVER.  189 

have  been  appointed,  leave  was  given  at  the  same 
time  to  the  execution-creditor  to  levy,  notwithstand- 
ing the  appointment.^) 

In  cases  where  the  court  is  not  satisfied  that  a 
receiver  ought  to  have  been  appointed,  the  court  may 
also,  in  order  that  the  execution-creditor  may  not 
suffer  loss  by  the  possession  of  the  receiver,  in  case  it 
shall  appear  in  proceedings  taken  by  the  creditor  that 
his  right  ought  not  to  have  been  interfered  with  by 
such  possession,  order  that  the  receiver  keep  within 
the  bailiwick  for  a  certain  period  sufficient  property 
to  answer  the  demand  ;  or  it  will  be  ordered  that  the 
petitioner  may  levy  unless  the  amount  of  the  demand 
oe  paid  into  the  bank  to  the  credit  of  the  cause, 
within  a  week  from  the  service  of  the  order,  the 
money  to  remain  in  the  bank  subject  to  the  order  of 
the  court,  and  the  receiver  to  be  at  liberty  to  pay  it 
in.(r) 

If  incumbrancers  come  in  for  examination  pro  inter- 
esso  suo,  and  it  turns  out  upon  inquiry  that  their  claim 
is  made  out,  they  are  entitled  to  have  the  rents  and 
profits  which  have  been  received  and  which  are  to  be 
received  by  the  receiver,  applied  in  payment  of  their 
incumbrances,  after  paying  the  costs  of  the  applica- 
tion.^) 

(q)  Russell  v.  East  Anglian  Raihvay  Co.,  3  Mac.  &  G.  151, 
Railway  Co.,  3  Mac.  &  G.  125;     153. 

see  Fowler  v.  Haynes,  2  N.  R.  (s)  Walker  v.  Bell,  2  Madd. 
156.  21 ;  Tatham  v.  Parker,  1  Sm.  & 

(?•)  Russell  v.  East  Anglian     G.  506;  see  Walsh  v.  Walsh,  1 

Ir.  Eq.  209. 


190  POSSESSION   OF   RECEIVER. 

If  there  is  a  doubtful  question,  and  the  question  to 
be  tried  is  a  pure  matter  of  title,  the  court  will  give 
the  claimant  leave  to  bring  ejectment,  taking  care, 
however,  to  protect  the  possession  by  giving  proper 
directions.^)  It  is  not  the  course  of  the  court,  unless 
it  is  perfectly  clear  that  there  is  no  foundation  for  the 
claim,  to  refuse  liberty  in  any  case  to  try  a  right  which 
is  claimed  against  its  receiver.(«) 

In  a  case  where  a  prior  incumbrancer  had  delayed 
too  long  in  pursuing  his  remedies,  the  court  refused 
his  application  that  a  receiver  who  had  been  appointed 
at  the  suit  of  a  second  incumbrancer  should  apply  the 
rents  according  to  their  priorities,  but  leave  was  given 
to  bring  ejectment.  The  ground  of  the  decision  was 
that  the  prior  mortgagee  had  no  right  to  that  relief 
by  petition  which  he  had  sought,  but  had  not  followed 
up  in  another  proceeding.  But  no  costs  were  given 
against  the  prior  incumbrancer.^) 

Where  a  receiver  has  been  appointed  over  the  estate 
of  a  tenant  for  life,  the  remainderman  has  a  right 
immediately  on  the  death  of  the  tenant  for  life  to  go 
into  possession  without  making  any  application  to 
the  court.(y) 

To  whom  Moneys  in  the  Hands  of  a  Receiver  appointed 
in  a  Foreclosure  Suit  belong  on  dismissal  of  Bill.—  W  hen 

(/)  Angel  v.  Smith,  9  Ves.  335;  (*)  Brooka  v.  Oreathead,  1  J. 

Brooks  \.  Oreathed,  I  J.  &    W.  &  W.  178. 

Empringham  v.  Short,  .'!  [y)  Britton   v.   McDonald,  5 

Ha.  I7(i;  Re  Butler,  L3  Ir.  Oh.  [r.Eq.  275;  ReStack,  L3  Ir.  Oh. 

457.  213. 

■  Randfield  v.  Randfield,  '.', 
I).  V.  A  ■).  772. 


POSSESSION    OF   RECEIVER.  191 

money  comes  into  the  hands  of  a  receiver  appointed 
in  a  foreclosure  suit,  and  no  particular  direction  has 
been  given  for  its  application,  it  belongs  in  the  first 
instance  to  the  plaintiff,  who  will  be  entitled  to  receive 
it  on  the  dismissal  of  the  bill.(e)  An  order  for  pay- 
ment may  be  made  on  motion  after  the  suit  is  out  of 
court  by  the  dismissal  of  the  bill. (a) 

Committal,  &c.,  for  Disturbance  of  Receiver.— A  man 
who  disturbs  or  interferes  with  the  possession  of  a 
receiver  is  guilty  of  a  contempt,  and  is  liable  to  be 
committed. (6)  In  extreme  or  aggravated  cases  the 
court  will  for  the  purpose  of  vindicating  its  authority 
order  a  committal  ;(c)  but  the  court  does  not  ordi- 
narily punish  by  actual  committal.  It  is  generally 
satisfied  with  ordering  the  party  in  contempt  to  pay 
the  costs  and  expenses  occasioned  by  his  improper 
conduct  and  the  costs  of  the  application. (d)1  In  cases 
where  the  contempt  consists  in  entering  upon  land  in 
the  possession  of  a  receiver,  or  in  bringing  an  action 
at   law   against  a  receiver,  or  against  a  party  over 

(z)  Paynter  v.  Carew,  18  Jur.  sion  against  a  receiver.     Broad 

417.  v.  Wickham,  4  Sim.  511. 

(a)  Wright  v.  Mitchell,  18  (d)  Russell  v.  East  Anglian 
Ves.  292.  Railway  Co.,  3  Mac.  &  G.  119; 

(b)  Supra,  p.  177.  Haiokins  v.  Gathercole,  1  Drew. 

(c)  Broad  v.  Wickham,  4  Sim.  18;  Fripp  v.  Bridgwater,  fyc, 
511.  No  order  nisi  is  necessary  Railway  Co.,  3  W.  R.  356  ; 
on  an  application  to  commit  a  Ames  v.  Birkenhead  Docks,  20 
person  for  taking  forcible  posses-  Beav.  345 ;  Lane  v.  Sterne,  3  Giff. 

629. 

1  See  Clark  v.  Bcninger,  9  Am.  Law  Reg.  (N.  S.)  304. 


192  POSSESSION   OF   RECEIVER. 

whose  property  a  receiver  has  been  appointed,  the 
course  of  the  court  is  to  restrain  by  injunction  the 
party  in  contempt  from  trespassing  or  prosecuting  the 
action,  as  the  case  may  be,  and  ordering  him  to  pay 
the  costs  of  the  application. (e)  AVhether  the  party 
proceeding  at  law  did  or  did  not  know  that  a  receiver 
has  been  appointed  over  property,  or  however  clear 
his  right  may  be,  the  court  will  restrain  the  prosecu- 
tion of  the  claim  if  it  be  instituted  without  leave.(/) 
In  Turner  v.  Turner(g)  the  agents  of  the  receiver  in 
the  cause,  acting  under  the  leave  of  the  court,  having 
taken  forcible  possession  of  a  house  occupied  by  a  ser- 
vant of  one  of  the  defendants,  an  order  was  made 
restraining  that  defendant  from  prosecuting  an  indict- 
ment against  the  agents.  An  action,  however,  against 
a  person  who  professes  to  act  under  the  authority  of  a 
receiver  will  not  be  restrained  unless  it  be  clear  that 
he  was  acting  under  authority. (A) 

A  motion  ought  not  to  be  made  to  commit  a  person 
for  disturbing  the  possession  of  a  receiver,  when  it  is 
made  long  after  the  act  complained  of,  and  is  made, 
not  for  the  protection  of  the  receiver's  possession,  but 
to  compel  payment  of  expenses  after  the  question 
relating  to  the  possession  is  settled.  The  proper  course 
is  to  make  such  a  direct  application  for  the  costs  as  is 
warranted  by  the  circumstances. (I) 

(r)  Johneay.  Olanghton,  Jac.  (/)  Evelyn  v.  Lewis,  ',)  Ha. 

DTK;  Aston  v.  Heron,  2  M.  A-  K.  1T.5. 

390;  Tink  v.  Bundle,  10  Bear.  (;/)  L5  Jur.  218. 

:'.1H;    Evelyn    v.    Lewie,  •'!   Ma.  (h)    Birch  V.  Oldis,  Sail.  &  Sc. 

•17:'. ;  Ames  v.  Birkenhead  1><>c/cs,  1 46. 

20  Bear.  364  (»')  Ward  v.  Swift,  f>  Ha.  312. 


POSSESSION   OF   RECEIVEK.  193 

Sheriff  may  not  disturb  Possession  of  a  Receiver.— The 
court  will  not  protect  a  sheriff  who  executes  process 
after  notice  from  a  receiver  that  he  is  in  possession.^)1 

A  sheriff  who  seizes  goods  in  the  possession  of  a  re- 
ceiver is  guilty  of  contempt,(Z)  and  may  be  committed, 
even  although  the  act  is  the  act  of  the  under-sheriff, 
and  there  is  no  reason  to  infer  that  it  is  the  personal 
act  of  the  sheriff.(?w)  In  a  case,  however,  where  the 
under-sheriff  had  seized  goods  in  the  possession  of  a 
receiver,  the  court  on  the  submission  of  the  sheriff 
would  not  commit  him,  but  ordered  him  to  withdraw 
from  possession,  and  to  pay  the  costs.  It  was  consid- 
ered that  this  order  was  sufficient  under  the  circum- 
stances of  the  case  for  the  maintenance  of  the  juris- 
diction.^)2 

"Where  the  sheriff  has  taken  property,  part  of  which 
is  claimed  by  a  receiver,  the  latter  will  be  directed  to 
give  a  list    of   the    property  claimed  by  him  to  the 


(k)  Try  v.  Try,  13  Beav.  422  ;  (I)  Lane  v.  Sterne,  3  Giff.  629. 

see   Rock  v.    Cook,  2  Ph.  691,  (m)  Russell  v.  East  Anglian 

where  the  sheriff  entered  under  a  Railway  Co.,  3  Mac.  &  G.  112. 

fi.fa.  issued  out  of  chancery.  (n)  lb.  119. 

1  The  appointment  of  a  receiver  after  suit  brought  does  not  cause 
the  suit  to  abate;  Phoenix  Warehousing  Co.  v.  Badger,  6  Hun,  293. 
If  a  receiver  is  appointed  by  a  State  court,  in  a  suit  by  stockholders 
against  a  corporation,  the  court  will  not,  at  the  instance  of  creditors, 
on  the  subsequent  bankruptcy  of  the  corporation,  discharge  the 
receiver  and  turn  the  property  over  to  the  assignee.  Myer  v.  Crys- 
tal Lake,  fyc,  Works,  14  Nat.  Bank.  B.  9. 

2  See  The  Albany  City  Bank  v.  Schermerhorn,  9  Paige,  C.  B. 
372,  and  10  Id.  263,  stated  ante,  p.  182,  note. 

13 


194  POSSESSION    OF   RECEIVER. 

sheriff,  who  will  be  ordered  to  withdraw  from  the 
possession  of  the  specified  property .(o) 

The  sheriff  may  also  be  restrained,  if  necessary, 
from  compelling  the  receiver  to  interplead,  and  will  be 
ordered  to  pay  the  costs  of  proceedings  for  that  pur- 
pose. If  the  execution-creditor  is  before  the  court,  he 
will  be  restrained  from  proceeding  against  the  sheriff' 
in  relation  to  the  property  seized  by  him,  or  any  other 
property  in  the  possession  of  the  receiver.  If  the 
execution-creditor  is  not  before  the  court,  this  cannot 
be  done,  but  the  sheriff'  can  come  to  the  court  for  pro- 
tection, if  necessary. (p) 

In  cases  where  the  court  is  not  satisfied  that  a  re- 
ceiver ought  to  have  been  appointed,  the  court  may,  in 
order  that  the  execution-creditor  may  not  suffer  loss 
by  the  possession  of  the  receiver  in  case  it  shall  appear 
in  proceedings  taken  by  the  creditor  that  his  right 
ought  not  to  have  been  interfered  with  by  such  posses- 
sion, order  that  the  receiver  retain  within  the  bailiwick 
for  fourteen  days  goods,  chattels,  and  effects  equal  in 
value  to  those  seized  by  the  sheriff,  not  exceeding 
what  would  be  necessary  to  satisfy  the  levy  in  the 
writ  of  ji.fa.,  such  value  to  be  settled,  if  necessary,  by 
the  judge,  (g-)1 

(o)  Wilmer  v.  Kidd,  Set.  on  Railway  Co.,  3  Mac.  &  G.  120, 
Deer.  L002.  122. 

(p)  Russell  v.  East  Anglian        (?)  lb.  121,  122. 

1  See.  in  this  connection,  R*c7i  v,  Loutrel,  0  Al>l>.  Pr.  R.  356.  In 
this  case,  however,  the  sheriff's  levy  was  prior  to  the  appointmenl  of 
the  receiver.  In  Edwards  v.  Edwards,  34  L,  T.  Rep.,  N.  S.  472, 
if  was  held  thai    the  appointmenl  of  a  receiver,  by  an  order  which 


POSSESSION   OF   RECEIVER.  195 

provides  that  the  person  named  therein  shall  be  appointed  receiver 
upon  his  giving  security,  takes  effect  only  from  the  date  of  the  chief 
clerk's  certificate,  that  the  security  is  perfected.  Therefore,  when 
after  such  an  order,  and  before  the  receiver  so  appointed  had  per- 
fected his  security,  an  execution  creditor  who  had  not  received  notice 
of  the  appointment  put  the  sheriff  in  possession  of  the  goods  over 
which  the  receiver  was  appointed;  Held,  reversing  the  judgment 
of  Malins,  T.  C,  that  the  execution  creditor  was  entitled  to  the 
goods. 


CHAPTER  VII. 

POWERS  AND  DUTIES  OF  A  RECEIVER. 

The  general  duty  of  a  receiver  may  be  said  to  be  to 
take  possession  of  the  estate  and  premises,  or  any  other 
property,  the  subject-matter  of  dispute  in  the  cause, 
in  the  room  or  place  of  the  owner  thereof;  and,  under 
the  sanction  of  the  court,  when  necessary,  to  do  all 
such  acts  of  ownership  as  to  the  receipt  of  rents,  com- 
pelling payment  of  them,  management,  and  letting 
the  lands  and  houses,  and  otherwise  making  the  pro- 
perty as  productive  for  the  parties  to  be  ultimately 
declared  to  be  entitled  thereto  as  the  owner  himself 
could  do  if  he  were  in  possession.1 

1  A  receiver  is,  as  a  general  rule,  a  mere  costodian,  and  has  no 
powers  except  those  conferred  upon  him  by  the  order  of  his  appoint- 
ment. See  Yeager  v.  Wallace,  44  Penn.  St.  E.  296;  Verplanck  v. 
The  Mercantile  Ins.  Co.,  2  Paige,  C.  R.  453;  Hooper  v.  Winston, 
24  Illinois,  3G3;  Grant  v.  The  City  of  Davenport,  18  Iowa,  194. 
See,  also,  Btnneson  v.  Bill,  G2  Illinois,  408,  where  it  was  held  that 
a  receiver  of  an  insolvent  insurance  company  appointed  at  the  suit 
of  creditors  should  not  be  directed  by  the  terms  of  his  appointment 
to  pay  the  debts  of  the  company.  His  functions  should  be  simply 
to  collect  the  assets  and  bring  the  money  into  court  for  distribution. 
J'.ut  "  in  the  progress  and  growth  of  equity  jurisdiction  it  has  become 
usual  to  clothe  such  officers  with  much  larger  powers  than  were  for- 
merly conferred,"  per  Bwayne,  J.,  in  Davis  v.  Qray,  L6  Wal.  219. 
In  many  of  the  United  States,  moreover,  enlarged  powers  are  con- 
ferred  by  statute  upon  receivers  in  certain  cases  j  but  persons  in- 
vested with  such  authority  arc  not  strictly  receivers— they  are 
statutory  assignees,  and  have  much  more  extensive  duties  and 
powers  than  those  of  a   mere  custodian  of  property.     Sec  the  Ian- 


POWERS   AND   DUTIES   OF   RECEIVER.  197 

Parties  required  to  deliver  up  Possession.— "Where 
parties  to  the  record  are  directed  by  the  order  to  de- 
liver up  to  the  receiver  the  possession  of  such  parts  of 
the  property  as  are  in  their  holding,(a)  the  receiver,  as 
soon  as  his  appointment  is  complete,  should  apply  to 
all  such  parties  to  deliver  up  possession  accordingly. 
If  any  of  them  refuse  to  do  so,  the  receiver  should 
report  the  refusal  to  the  solicitor  of  the  party  having 
the  conduct  of  the  proceedings,  who  must  then  serve 
such  party  personally  with  the  order  directing  the 
possession  to  be  delivered  up.(6) 

If  possession  is  still  withheld  from  the  receiver,  an 
application  should  be  made  by  motion  ex  7parte  for  a 
writ  of  assistance  directed  to  the  sheriff  of  the  county 
wherein  the  property  is  situate,  to  put  the  receiver  in 
possession  pursuant  to  the  order.(c)  The  application 
should  be  supported  by  an  affidavit  of  service  of  the 
order  and  of  non-compliance.(^)  The  writ  is  prepared, 
issued,  and  executed  in  the  ordinary  manner.(e)1 

(a)  Supra,  p.  14.  for  writ  of  assistance,  3  Pan.  Ch. 

(6)   Green   v.   Green,  2  Sim.  Pr.  51,  1734. 

430 ;  Ord.  XXIX.  r.  5.  (d)  Dan.  Oh.  Pr.  1578  ;  see  as 

(c)  Dan.  Ch.  Pr.  1578  ;  see  as  to  form  of  affidavit,  3  Dan.  Ch. 

to  form  of  order,  Set.  on  Deer.  Pr.  1735. 

1229  ;  as  to  form  of  motion-paper  (e)  See  Dan.  Ch.  Pr.  957. 

guage  of  Judge  Strong  in  Yeager  v.  Wallace  (supra) ;  also  Runyon 
v.  The  Farmers'  and  Mechanics'  Bank,  3  Green,  C.  R.  480 ;  Cooney 
v.  Cooney,  65  Barb.  524;  and  the  statutes  of  the  different  States 
cited,  ante,  in  the  notes  to  Chapter  I. 

1  The  property  may  be  sequestered,  and  the  agents  and  servants 
of  the  party  may  be  prohibited  from  delivering  it  to  him,  or  applying 
it  to  his  use,  on  pain  of  contempt.  The  People  v.  Rogers,  2  Paige, 
C.  R.  103.  See  also  Parker  v.  Browning,  8  Paige,  C.  R.  388,  cited 
ante,  page  178,  note ;  and  In  re  Cohen  §■  Jones,  5  Cal.  494. 


198  POWERS    AND   DUTIES   OF   RECEIVER. 

If  the  party  to  the  proceedings  is  not  ordered  to 
deliver  up  possession  to  the  receiver,  he  is  not  bound 
to  do  so;  but  he  will  be  charged  with  an  occupation 
rent  for  the  premises  in  his  possession.(/)  A  person 
in  possession,  it  may  be  observed,  who  has  been  ordered 
to  pay  an  occupation  rent,  will  not  be  ordered  on 
motion  before  the  hearing  to  pay  an  occupation  rent 
for  a  period  antecedent  to  the  order  for  fixing  occupa- 
tion rent,  if  under  the  circumstances  of  the  case  the 
period  for  fixing  the  occupation  rent  and  appointing 
the  receiver  is  the  origin  of  his  tenancy.^) 

Tenants  should  be  required  to  attorn.— If  tenants  in 
possession  of  real  or  leasehold  estates  over  which  a 
receiver  is  appointed,  are  directed  by  the  order  to 
attorn  to  the  receiver,(/t)  the  receiver  should,  as  soon 
as  his  appointment  is  complete,  call  on  them  to  attorn 
accord  ingly.(Y) 

If  the  tenant  refuses  to  attorn  to  the  receiver,  the 
party  prosecuting  the  order  should  serve  him  person- 
ally with  a  copy  of  the  order  for  the  appointment  of  a 

(/)  Randfieldv.Randfidd,"  care  that  the   tenants   shall   be 

W.  K.  65 1 .  protected,  both  while  the  receiver 

(g)  Lloyd  v.  J!/aso?t,  2M.&  C.  continues  to  act,  and  when,  by 

487.  the  authority  of  the  court,  he  is 

(h)  Supra,  p.  14.  withdrawn.     Evans  v.  Mathias, 

(*)  The    attornment  to   a   re-  7  E.  &  B.  602.     The  attornment 

ceivcr  appointed  by  the  Court  of  creates  a    tenancy  between    the 

Chancery  constitutes  a  tenancy  tenant   and   receiver    only,   and 

by  estoppel  between  the  tenant  does    not  enure   for  the   person 

and    receiver,  which    the    court  who  may  ultimately  be  found  to 

applies  to  the  purpose  of  collect-  be  entitled  to  the  legal  estate,  so 

ing  and  securing  the  rents  till  a  as  to  enable  him  to  distrain,  lb. 
decree  can  be  pronounced,  taking 


POWERS   AND   DUTIES   OF   RECEIVER. 


199 


receiver,  and  of  the  order  or  certificate  completing  the 
appointment,^)  and  with  a  notice  in  writing  signed 
by  the  receiver  requiring  him  to  attorn  and  pay.(7) 
If  he  still  refuse  to  attorn,  the  tenant  should  be  served 
with  notice  of  motion  to  attorn  and  pay  within  a 
limited  time  after  the  service  of  the  order  to  be  made 
on  the  motion. (m) 

The  person  served  may  appear  on  the  motion  and 
inform  the  court  whether  he  is  in  possession  as  tenant 
or  not.(rc)  If  he  does  not  appear,  the  order  will  be 
made  upon  an  affidavit  of  service  of  the  notice  of 
motion,  orders,  certificate,  and  notice  to  attorn,  and 
on  proof  by  affidavit  of  the  refusal  to  attorn. (o)  The 
order  will  be  made  without  costs  in  cases  where  the 
tenant  had  reasonable  ground  for  refusing  to  attorn. (p) 

A  copy  of  the  order  indorsed  in  the  usual  manner  is 
then  served  personally  upon  the  person  thereby  directed 
to  attorn  :(q)  and  upon  production  to  the  record  and 
writ  clerk  of  an  affidavit  of  such  service,  and  of  an 
affidavit  by  the  receiver  of  non-compliance,  he  will 
seal  an  attachment  against  the  party  in  contempt. (r) 


(Jc)  Supra,  p.  165-6. 

(I)  Dan.  Ch.  Pr.  1578  ;  see  as 
to  form  of  notice  to  tenant  to 
attorn,  3  Dan.  Ch.  Pr.  1737  ;  as 
to  form  of  attornment,  lb.  1738. 

(m)  See  as  to  form  of  notice 
of  motion  for  tenant  to  attorn  and 
pay,  3  Dan.  Ch.  Pr.  1739. 

(n)  Keid  v.  Middleton,  T.  & 
E.  457  ;  Hobhouse  v.  Hollcombe, 
2DeG.&S.  208. 


(o)  Dan.  Ch.  1578;  Hobson  v. 
Shearwood,  19  Beav.  575  ;  see  as 
to  form  of  affidavit  in  support  of 
motion  to  attorn,  3  Dan.  Ch.  Pr. 
1741. 

(p)  Hobhouse  v.  Hollcombe,  2 
DeG.  &  S.  208.  Comp.  Hobson 
v.  Sheanvood,  19  Beav.  575. 

(q)  Dan.  Ch.  Pr.  1579. 

(?•)  See  as  to  form  of  affidavit, 
3  Dan.  Ch.  Pr.  1743. 


200  POWERS   AND   DUTIES   OF   RECEIVER. 

The  attachment  is  prepared,  issued,  and  executed  in 
the  ordinary  manner.(s) 

In  cases  where  it  does  not  clearly  appear  what  is  the 
nature  of  the  interest  of  the  person  in  possession  of 
property,  it  is  not  necessary  to  make  him  a  party  to  the 
suit.  The  court  will  upon  the  allegation  that  he  is  a 
tenant  treat  him  as  a  tenant,  and  require  him  to  attorn, 
unless  he  can  satisfy  the  court  that  he  holds  the  pos- 
session in  some  other  character.(0  In  Reid  v.  Middle- 
ton{u)  it  appeared  that  the  tenant  in  possession  had 
not  agreed  to  pay  any  specific  rent,  and  an  order  was 
made  in  consequence,  that  an  occupation  rent  should 
be  settled  by  the  Master,  and  that  the  tenant  should 
pay  the  arrears  and  future  payments  of  such  occupa- 
tion rent. 

If  a  judgment-creditor  be  in  possession  under  his 
judgment,  the  court  cannot  order  him  to  attorn. {x) 

Delivery  of  Court  Rolls.— The  court  will,  on  the 
petition  of  the  lord,  order  the  steward  of  a  manor 
who  holds  the  court  rolls  as  the  lord's  agent,  to  de- 
liver them  up  to  the  receiver.(y) 

Rents  in  Arrear,  &c.— A  receiver  is  entitled  to  all  the 
rents  in  arrear  at  the  date  of  his  appointment,^)  and 

(s)    Dan.  Oh.  Pr.  941.  (z)  Codrington  v.  Johnstone,! 

(/)  Reid  v.  Middleton,  T.  &  R.  Beav.  524 ;  McDonnell  v.  White, 

455.  11    II.  L.   570;  see    Russell  v. 

(u)  It..  Russell, 2 Ir. Cti. 574.    Although 

(x)   Davia  v.   Duke  of  Marl-  the  tenants  are  only  responsible 

borough,  2  Sw.  1  L8.  from  the  time  when  the  order  to 

[y)  Jtawes  v.  ltaives,  7  Sim.  pay  their  rents  to  the  receiver  is 

624.  served  on  them,  the  person  cnii- 


POWERS   AND   DUTIES   OF   RECEIVER.  201 

to  all  the  rents  which  accrue  during  the  continuance 
of  his  receivership ;  an  order  may  be  obtained  on 
motion  or  summons  with  notice  to  the  tenant  for  pay- 
ment thereof  by  him  to  the  receiver,  notwithstanding 
that  he  may  not  have  attorned.  The  tenant  will  have 
to  pay  the  cost  of  the  application. (a)1 

A  person  who  admits  a  sum  of  money  to  be  due 
from  him  to  the  estate,  cannot  dispute  the  right  of  the 
receiver  to  collect  it.(6) 

Although  a  receiver  is  entitled  to  all  arrears  of  rent 
at  the  date  of  his  appointment,  produce  which  has 
been  already  separated  from  the  estate  before  the  date 
of  the  order,  though  not  yet  converted  into  money, 
does  not  belong  to  the  receiver.  "Where,  therefore,  a 
manager  was  appointed  of  a  "West  Indian  estate  with 
directions  to  receive  and  remit  the  rents  and  produce, 
the  consignees  were  not  ordered  to  pay  into  court  the 
surplus  moneys  arising  from  the  produce  of  the  estate 
which  had  been  severed  and  shipped  by  the  mortgagor 

tied    to   receive   such    rent  and  Beav.   575 ;   see   as   to  form   of 

arrears  is  bound  from  the  date  of  notice  of  motion  for  summons,  3 

the  order  for  a  receiver,  when  he  Dan.  Ch.  1744. 

has  notice  of  such  order.    Hollier  (b)  Wood  v.  Hickings,  2  Beav. 

v.  Hedges,  2  Ir.  Ch.  376.  294.     [See  post,  p.  205,  note  l.J 
(a)  Hobson  v.  Shearwood,  19 

1  In  a  creditor's  suit,  where  a  receiver  had  been  appointed,  and 
where  the  debtor  was  a  tenant  and  had  underlet,  it  was  held  that 
rents  which  came  into  the  receiver's  hands  from  the  under-tenants 
ought  not  to  be  considered  as  subject  to  distribution  among  creditors 
until  the  claim  of  the  original  landlord  for  rent  had  been  extin- 
guished.    Biggs  v.  Whitney,  15  Abb.  Pr.  Rep.  388. 

As  to  the  duties  of  a  receiver  of  rents,  see  Keenan  v.  Shannon, 
9  Nat.  Bank.  Res?.  441. 


202  POAVERS    AND   DUTIES   OF   RECEIVER. 

to  the  consignees,  but  had  not  been  received  by  them 
at  the  date  of  the  order.(c) 

Duty  of  Receiver  to  take  Proper  Receipts.— When  the 
order  directs  that  the  receiver  shall  put  down  the 
interest  of  incumbrancers,  or  make  any  other  payments, 
he  must,  of  course,  comply  with  that  order,  and  the 
sums  so  paid  by  him  will  be  allowed  in  his  accounts. 
He  must,  however,  take  proper  receipts  from  the  per- 
sons to  whom  he  makes  such  payments,  and  it  must 
be  remembered  that  in  passing  his  accounts  he  will  be 
subject  to  the  rules  to  which  all  other  accounting 
parties  are  subjected)  and  he  will  only  be  allowed  to 
discharge  himself  by  affidavits  as  to  those  payments 
which  are  under  40s. ;  for  all  other  payments  he  must 
produce  proper  vouchers.(<?) 

Distress.— After  the  tenant  has  attorned  to  the  re- 
ceiver, and  so  created  a  tenancy  between  him  and  the 
receiver,(/)  the  receiver  may  distrain  upon  the  tenant 
in  his  own  name,  and  on  his  own  authority,  without 
leave  obtained  from  the  court.(^)  Before  attornment 
the  receiver  must  distrain  in  the  name  of  the  person 
having  the  legal  estate.(A) 

(r)  Codringtonv.  Johnston,  Dancer  v.  Hastings,  4  Bing.  2; 

Beav.  520.  12  Moo.  34;  Bennett  v.  Robin*, 

(d)  Dan.  Oh.  Pr.  158G.  5  C.  &  P.  379;  see  Jolly  v.  Ar- 

(r)  II).  buthnot,  4  D.  &  J.  239.     A  re- 

(/)  Sic  Evans  v.   Mathias,  7  ceiver   may   employ  a  bailiff  to 

E.  &  B.  G02.  make  a  distress.    Dancer  v.  Hast- 

((j)  RaincocJc  v.  Simpson,  cit.  ings.  4  Ding.  2  ;  12  Moo.  34;  see 

l  Dick.  120  ;  Pitt  v.  Snowdon,  3  Birch  v.  Oldis,  San.  &  Sc.  145. 

Atk.  7.">i) ;  Hughes  v.  Hughes,  3        (/<)  Hughes  v.  Hughes,  3  Bro. 

Bro.  (J.  C.  BG;  1  Ves.  Jr    1G1  ;  0.  C.  85;  1  Vcs.  Jr.  161. 


POWERS   AND   DUTIES   OF   RECEIVER.  203 

Leave  that  the  receiver  may  distrain  in  the  name  of 
the  person  having  the  legal  estate  may  always  be 
obtained  from  the  court  on  motion  or  petition.^")1  If 
there  is  any  doubt  who  has  the  legal  right  to  the  rent, 
the  receiver  should  make  an  application  to  the  court 
for  directions  thereon  ;  but  in  cases  where  there  is  no 
doubt  who  has  the  legal  right  to  the  rent,  the  leave  of 
the  court  to  distrain  in  the  name  of  the  person  having 
the  legal  estate  does  not  seem  to  be  necessary.(&)  If, 
however,  the  person  having  the  legal  estate  is  a  trustee, 
and  the  receiver  is  a  solicitor,  the  court  is  unwilling 
to  give  him  power  of  instituting  proceedings  against 
a  tenant  for  arrears  of  rent  if  the  trustee  is  opposed  to 
the  proceedings.  A  reference  to  the  Master  as  to  the 
propriety  of  proceeding  in  the  name  of  the  trustee 
was  refused  in  such  a  case.(f) 

Instead  of  moving  that  he  may  have  liberty  to 
distrain  in  the  name  of  the  party  having  the  legal 
estate,  the  receiver  may  obtain  an  order  on  motion  or 
summons,  with  notice  to  the  tenant  for  payment,  not- 
withstanding that  he  may  not  have  attorned,(m)  or  he 
may  move  that  the  tenants  do  attorn,  and  the  distress 
may  afterwards  be  made  in  his  name.     This  will  be 

(i)  Shelly  v.Pelham,!  Dick.  750;  Brandon  v.   Brandon,  5 

123 ;  Mitchell  v.  Duke  of  Man-  Madd.  473. 

Chester,   2   lb.   787;  Hughes  v.  {1)  Delia  Caineax.  Hay  ward, 

Hughes,  1  Ves.  Jr.  161 ;  3  Bro.  McClell.  &  Y.  272. 

C.  C.  85.   See  as  to  form  of  order  (m)  Hobson  v.  Shearwood,  19 

Set.  on  Deer.  1013.  Beav.  575  ;  supra,  p.  198. 

(&)  Pitt  v.  Snowdon,  3  Atk. 

1  See  remarks  of  Cowen,  J.,  in  Merritt  v.  Lyon,  16  Wend.  410. 


204  POWERS    AND   DUTIES   OF   RECEIVER. 

ordered  ou  motion ;  and  if  the  tenants  oppose  on  the 
ground  of  the  pendency  of  an  action  commenced  be- 
fore the  appointment  of  the  receiver  for  the  same  rent, 
the  motion  will  be  ordered  to  stand  over  until  the 
action  has  been  tried. (n) 

In  Brandon  v.  Brandon ,(o)  it  was  said  to  be  the 
practice  for  the  receiver  to  distrain  upon  his  own  dis- 
cretion for  rent  in  arrear  within  the  year ;  but  as  to 
rent  in  arrear  for  more  than  a  year,  that  an  order  from 
the  court  was  necessary.  Brandon  v.  Brandon  was,  it 
must  be  observed,  a  case  in  which  the  legal  estate  was 
in  trustees,  and  a  motion  was  made  that  the  receiver 
might  be  at  liberty  to  distrain  in  the  name  of  the 
trustees,  so  that  the  statement  as  laid  down  by  Leach, 
M.  R.,  must  perhaps  be  taken  as  referable  to  cases 
where  the  legal  estate  is  outstanding,  and  there  has 
been  no  attornment  to  the  receiver.  As  a  receiver  is 
entitled  to  all  arrears  of  rent,  he  may,  it  would  appear, 
if  there  has  been  attornment,  distrain  without  obtain- 
ing the  leave  of  the  court  for  all  arrears  accrued 
during  the  tenancy. 

An  application  for  leave  to  distrain  is  made  in  cham- 
bers and  ordinarily  by  summons,  but  it  is  not  usual  to 
draw  up  an  order  in  such  cases,  the  minute  made  by 
the  chief  clerk  of  the  directions  given  being  deemed 
sufficient,  (p) 

(?/)  ffobhouae  v.  Hullcombe,  2        (o)  5  Madd.  473. 
DeG   as.  208;  see  as  to  form  of       (}>)  Dan.  Oh.  Pr.  l.r>84;  see  as 

notice  of  motion   for  tenant  to  to  form  of  summons  for  leave  for 

attorn    and    pay    rent,    and    afli-  receiver  to  distrain,  3   Han.  Ch. 

davits,   3   Dan.   Ch.    Pr.   17:i'J-  Pr.  1746;  and  bring  actions  for 

17  11.  arrears  of  rent,  lb.  17-17. 


POWERS    AND   DUTIES   OF   RECEIVER.  205 

In  a  case  where  a  plaintiff  upon  whose  application 
the  receiver  has  been  appointed  was  proceeding  both 
at  law  and  in  equity,  the  court  would  not  give  leave 
to  the  receiver  to  distrain  upon  the  tenants  unless  the 
plaintiff  would  undertake  to  proceed  in  equity  only, 
because  the  tenants  might  file  bills  of  interpleader.^) 

The  abatement  of  the  suit  does  not  affect  or  deter- 
mine the  appointment  of  a  receiver,  or  suspend  his 
authority  to  proceed  against  the  tenants.  His  autho- 
rity continues  until  an  order  is  made  for  his  removal. 
Until  such  an  order  is  made  a  receiver  may  distrain 
or  perform  his  other  duties,  notwithstanding  a  total 
abatement  of  the  suit.(r) 

It  was  held  in  an  Irish  case  that  a  tenant  who  rescues 
a  distress  made  by  the  receiver,  will  not  be  attached 
for  the  rescue,  but  that  the  receiver  must  proceed  at 
common  law  or  under  the  statute.(s) 

Duty  of  Receiver  appointed  over  Personal  Property. 
— Where  a  receiver  is  appointed  by  the  court  to  get 
in  outstanding  personal  property,  it  is  his  duty  to 
collect  all   he  can  get  in.1     The  order  appointing  a 

(q)  Mills  v.  Fry,  Coop.  107.  (s)  Fitzpatrickv.  Eyre,lHog. 

(r)  Neivman  v.  Mills,  1  Hog.     171. 
291;  Brennan  v.  Kenny,  2  Ir.  Ch. 
583. 

1  A  receiver  to  whom  money  is  paid  is  not  bound  to  investigate 
the  liability  of  the  party  paying  it,  and  he  can  part  with  it  only 
under  an  order  of  the  court.  Even  if  the  money  is  paid  by  mistake, 
the  court  alone  can  order  it  to  be  refunded.  Getty  v.  Campbell,  2 
Robt.  664.  When  a  good  tender  cannot  be  made  to  a  receiver, 
see  Poague  v.  Greenlee,  22  Grat.  724. 


206  POWERS    AND   DUTIES   OF   RECEIVER. 

receiver  of  outstanding  personal  estate  generally  com- 
prises a  direction  that  the  parties  in  whose  possession 
the  same  may  be  shall  deliver  over  to  the  person  to  be 
appointed  receiver  all  securities  in  their  possession  for 
such  outstanding  personal  estate,  together  with  all 
books  and  papers  relating  thereto.(^)  If  the  parties  in 
whose  hands  such  securities  and  papers  are,  refuse  to 
deliver  them  up,  the  receiver  should  give  notice  of 
such  refusal  to  the  party  conducting  the  proceedings, 
who  must  take  the  necessary  steps  for  enforcing  the 
order.(w)  If  the  person  indebted  to  the  estate  refuse 
to  pay  the  amount  due  to  them,  the  sanction  of  the 
judge  must  be  obtained  to  the  receiver  putting  them  in 
suit.(:c)  Applications  for  the  sanction  of  the  judge  in 
such  cases  are  usually  made  by  summons  supported  by 
affidavits  or  other  evidence  of  the  facts.fj/)1 

(<)  Set.  on  Deer.  1002.  unless  it  appears  likely  that  some 

(u)  Dan.  Ch.  Pr.  938  et  seq.  fruits  may  be  derived  from  the 

(x)  lb.;    Set.  on  Deer.  1013,  suit.  Daciev.  John,  McClell.  575. 

1031.     The   court   will  not  em-        (?/)  See  as  to  form  of  summons, 

power  a  receiver  to  sue  for  debts  3  Dan.  Ch.  Pr.  1268. 

1  The  right  of  a  receiver  to  bring  actions  against  persons  not 
parties  to  the  suit  in  which  he  is  appointed,  for  the  recovery  of  real 
or  personal  preperty,  or  for  the  collection  of  debts,  is  subject  to  two 
restrictions — in  the  tirst  place,  the  sanction  of  the  court  must  be  pre- 
viously obtained,  and  secondly,  the  action  must  be  brought  in  the 
name  of  the  party  in  whom  the  legal  right  or  title  to  the  property 
to  be  recovered  is  vested.  Daniel's  Ch.  Pr.  1439;  and  see  the  cases 
cited  in  note  g,  p.  216,  infra,  and  Manlove  v.  Burger,  38  Ind.  211  ; 
Battle  v.  Davis,  66  North  Carolina,  252  ;  Screven  v.  Clark,  48 
Georgia,  41.  This  rule  is  generally  followed  in  the  United  States. 
The  receiver  is  regarded  as  a  mere  custodian,  and  not  as  having  any 
legal  right  to  the  property.  See  Yeager  v.  Wallace,  44  Penn.  St. 
Rep.  294  (where  the  doctrine  is  stated  by  Strong,  J.)  ;  Freeman  v. 


POWERS   AND   DUTIES   OF   RECEIVER.  207 

Receiver  of  Partnership— When   a   receiver    is   ap- 
pointed to  manage  a  partnership  concern,  he  must  be 


Winchester,  10  Sm.  &  Marsh.  577  ;  Newell  v.  Fisher,  24  Miss.  392  ; 
Leonard  v.  Storrs.  31  Alab.  488  ;  Green  v.  Winter,  1  Johns.  0.  R. 
60  ;  Merritt  v.  Lyon,  16  Wend.  405 ;  King  v.  Cntts,  24  Wis.  627  ; 
though  in  Tillinghast  v.  Champlin,  4  R.  Island,  177,  it  was  said 
that  the  better  practice  is  for  the  receiver  to  bring  actions  suo  motu, 
and  without  special  leave. 

The  court,  however,  may  by  its  decree,  under  certain  circum- 
stances, confer  upon  the  receiver  the  right  to  sue  in  his  own  name. 
Leonard  v.  Storrs,  31  Ala.  488 ;  see  also  Hardivick  v.  Hook,  8 
Georgia.  358  ;  Adams  v.  Woods,  15  Cal.  206  ;  and  Iddings  v.  Bruen, 

4  Sand.  0.  R.  417;  and  such  an  order  is  frequently  made.  And  in 
some  States  the  authority  to  bring  actions  is  conferred  upon  some 
receivers  by  statute.  Hamlin  v.  Wright,  23  Wisconsin,  493;  Grant 
v.  The  City  of  Davenport,  18  Iowa,  194;  Everett  v.  The  State,  28 
Maryl.  208 ;  Hoyt  v.  Thompson,  1  Selden,  320  ;  Porter  v.  Williams, 

5  Selden,  142  ;  Steivart  v.  Beebe,  28  Barb.  34 ;  Coope  v.  Boivles,  42 
Barb.  87;  Bolles  v.  Duff,  43  N.  Y.  469;  RocTcioell  v.  Memvin,  45 
Id.  166;  Story  v.  Furman,  25  Id.  214;  Calkins  v.  Atkinson,  2 
Lans.  12 ;  The  Albany  City  Lis.  Co.  v.  Van  Yranken,  42  How.  Pr. 
R.  281 ;  Manlove  v.  Burger,  38  Ind.  211 ;  Same  v.  Naylor,  Id.  424. 
See  the  remarks  of  Judge  Strong  on  this  subject,  in  Yeager  v. 
Wallace,  44  Penn.  St.  R.  296  ;  and  of  Wayne,  J.,  in  Booth  v.  Clark, 
17  Howard,  331 ;  see,  also,  Bank  of  North  America  v.  Wlieeler, 
28  Conn.  441.  The  receivers  of  national  banks  may  sue  without 
special  orders.  Bank  v.  Kennedy.  17  Wal.  19.  See  also  Kennedy 
v.  Gibson,  8  Id.  506 ;  Bank  of  Bethel  v.  The  Pahquioque  Bank, 
14  Id.  383. 

In  Booth  v.  Clark,  it  was  decided  that  a  receiver  had  no  authority 
to  sue  outside  the  jurisdiction  in  which  he  was  appointed  ;  and  this 
rule  was  followed  in  Graydon  v.  Church,  7  Michigan,  36.  and 
Hope  Ins.  Co.  v.  Taylor,  2  Robt.  278  ;  and  see  Hunt  v.  Columbian 
Jns.  Co.,  55  Maine,  297  ;  Harvey  v.  Varney,  104  Mass.  436-443 ; 
and  supra,  pp.  172-3.  But  Runk  v.  St.  John,  29  Barb.  585,  is  the 
other  way.  See  also  Bidlack  v.  Mason,  11  0.  E.  Green,  230. 
Where,  however,  the  legal  title  has  been  conferred  upon  the  receiver 
by  an  assignment  from  the  former  holder,  he  may  sue.  Graydon 
v.  Church  (supra).    The  appointment  of  a  receiver  of  a  bank  by  a 


208  POWERS   AND   DUTIES   OF   RECEIVER. 

guided  by  the  terras  of   the  order  of  appointment, 
keeping  in  mind  the  general  maxim  that  as  his  au- 

State  court,  will  not  prevent  an  action  in  another  State  against  the 
company.     See  City  Ins.  Co.  v.  Commercial  Bank,  68  111.  348. 

And  a  receiver  may  prove  a  debt  against  a  bankrupt  in  another 
State.  In  re  Republic  Ins.  Co.,  8  Nat.  Bank.  Reg.  197.  So  also 
Armstrong  v.  Armstrong,  L.  R.  12  Eq.  614. 

The  receiver  appointed  in  bankruptcy  proceedings  before  the 
election  of  an  assignee  is  not  entitled  to  bring  suit  for  the  recovery 
of  property  transferred  before  the  commencement  of  bankrupt  pro- 
ceedings in  violation  of  the  bankrupt  act;  he  is  a  mere  custodian. 
Lansing  v.  Manton,  14  Nat.  Bank.  Beg.  127. 

The  court  will  restrain  a  receiver  from  bringing  an  unauthorized 
and  unjust  action.  See  the  Matter  of  Merritt,  5  Baige,  131,  where 
the  law  upon  this  subject  is  stated  by  Chancellor  Walworth,  whose 
decree  was  affirmed  in  Merritt  v.  Lyon,  16  Wend.  405. 

The  receiver's  authority  to  sue  must  be  duly  alleged,  and  if  tra- 
versed duly  proved.  Gillett  v.  Fairchild,  4  Denio,  80  ;  White  v. 
Joy,  3  Kern.  83  ;  Bangs  v.  Mcintosh,  23  Barb.  598.  See,  however, 
Case  v.  Marchentl,  23  Louisiana  Ann.  60. 

A  receiver  cannot  be  sued  without  leave  of  the  court :  De  Groot 
v.  Jay,  30  Barb.  483  ;  and  a  violation  of  this  rule  will  be  regarded  as 
a  contempt,  and  punished  accordingly;  Taylor  v.  Baldwin,  14  Ab- 
bott's Pr.  R.  166  ;  Riggs  v.  Whitney,  15  Id.  388  ;  Noe  v.  Gibson,  7 
Paige,  C.  R.  515;  Robinson  v.  Atlantic  and  Great  Western  Rail- 
way Co.,  66  Penna.  St.  R.  16  ;  Thompson  v.  Scott,  3  Cent.  Law  J. 
737 ;  Allen  v.  Central  R.  R.,  Id.  434,  2  Law  and  Eq.  Rep.  202.  But 
a  receiver  may  be  sued  for  a  breach  of  any  obligation  or  duty  assumed 
by  him  in  conducting  a  business  in  which  he  is  acting  as  receiver. 
Thus  a  receiver  of  a  railroad  has  been  held  liable  as  a  common 
carrier.  See  Blumenthal  v.  Brainerd,  38  Vermont,  408;  Paige  v. 
Smith,  99  Mass.  395.  See  2  Southern  Law  Rev.  (N.  S.)  576;  article 
by  Mr.  High.  And  a  receiver  is  liable  for  taking  possession  of 
property  not  embraced  in  the  decree  appointing  him.  Ihlls  v. 
Parker,  111  Mass.  508.  In  actions  against  receivers,  they  ought 
not  to  waive  any  legal  technical  defence.  McEvers  v.  Lawrence, 
Boflfraan,  0.  It.  172. 

When  actions  are  properly  brought  or  defended  by  a  receiver,  the 
court  will  not  suffer  the  costs  to  be  laid  upon  him.  Devendorf  v. 
Dickinson,  21  How.  Pr.  R.  275  ;  sec  also  the  judgment  in  Common- 
wealth v.  Runk,  26  Penna.  St.  R.  237  j  The  Columbian  Ins.  Co.  v. 


POWERS    AND    DUTIES    OF   RECEIVER.  209 

thority  flows  from  the  court,  he  must,  in  all  cases,  act 
under  a  special  order  to  be  obtained  from  the  court. 

Power  and  Duty  of  Receiver  as  to  letting  Estates.— 
A  receiver  being  appointed  by  the  court  for  the  man- 
agement of  the  estate,  it  was  formerly  a  motion  of 
course  to  give  liberty  for  a  receiver  to  set  or  let.  An 
express  power  to  that  effect  was  afterwards  inserted  in 
most  orders.O)  By  the  64th  order  of  April,  1828,  it 
was  ordered  that  in  any  order  directing  the  appoint- 
ment of  a  receiver  of  a  landed  estate,  there  be  inserted 
a  direction  that  he  should  have  power  to  set  and  let 
with  the  approbation  of  the  Master,  who  was  empow- 
ered without  the  special  order  of  the  court  to  receive 
and  report  on  proposals  from  the  parties  interested, 
for  the  management  or  letting  of  the  estate.(a)  Since 
the  15  &  16  Vict.,  ss.  80  and  86,  a  direction  to  manage 
or  set  and  let  is  no  longer  inserted  in  the  order  of 
appointment,  the  judge  having   power  to  give   any 

(z)  Need  v.  Bealing,  3  Sw.  lull,  14  Sim.  600 ;  Dvffield  v. 
304  11.  Ehves,  11  Beav.  590. 

(a)  See  Thornhill  v.   Thorn- 
Stevens,  37  New  York,  536  ;  and  infra,  p.  231.     "Where,  however, 
the  matter  is  purely  personal  with  the  receiver,  costs  maybe  imposed 
on  him.    Chapin  v.  Thompson,  4  Hun,  779. 

As  to  a  receiver's  compromising  a  claim  under  the  direction  of 
the  court,  see  Suydam  v.  The  Receivers,  2  Green,  C.  R.  278  ;  refer- 
ring claims,  Guardian  Savings  Institution  v.  Bowling  Green  Sav- 
ings Bank,  65  Barb.  275;  and  settling  mutual  claims,  Matter  of 
Van  Allen,  37  Barb.  225. 

The  court  may,  upon  summary  application,  direct  a  receiver  of  an 
insolvent  corporation  to  allow  a  set-off  in  favor  of  a  party  against 
whom  the  receiver  has  brought  an  action.  Holbrook  v.  The  Re- 
ceivers, 6  Paige,  C.  R.  220. 

14 


210  POWERS   AND   DUTIES   OF   RECEIVER. 

directions  in  chambers  as  to  the  management  of  the 
estate.(6) 

Under  the  old  practice  the  course  of  the  court  was 
to  order  the  Master  to  receive  proposals  as  to  leases  of 
property  over  which  a  receiver  had  been  appointed, 
and  to  report  his  opinion  thereon.  The  court  did  not 
delegate  to  the  Master  the  power  of  approving  or  sanc- 
tioning leases.  The  order  was  simply  that  he  should 
receive  proposals  for  leases,  and  report  his  opinion 
thereon  to  the  court.(c)  A  receiver  could  not,  without 
the  sanction  of  the  court,  set  or  let,(W)  even  for  a 
single  year.(e)  A  lease  granted  by  the  receiver  with- 
out the  consent  of  the  court,  as  evidenced  by  the 
Master's  Report,  was  invalid. (/)  If,  however,  a  re- 
ceiver had  contracted  for  a  lease  without  the  consent 
of  the  court,  the  court  would,  on  motion,  refer  it  to 
the  Master  to  see  if  the  contract  was  for  the  benefit  of 
the  parties,  and  what  better  rent  could  be  obtained. 
If  the  contract  was  approved  of,  it  was  confirmed. (g) 

A  receiver  under  the  present  practice  may  let  at  his 
discretion  for  a  year  certain  or  less,  or  for  any  time 
not  exceeding  three  years,  without  applying  for  the 
sanction  of  the  judge.(A)  But  the  power  of  a  receiver 
to  grant  leases  is  limited  to  such  parol  leases  as  are 
authorized  by  the  second  section  of  the  Statute  of 

(b)  Set.011  Deer.  L016.  (/)  DurD/urdv.Laiie^^M]^. 

Mr  lh  nniiii  v.  Kealey,  Jac.  Ch.  303. 

:;T  I  ;  Symona  v.  Symons,  '1  Y.  &.  (g)  Anon.,  lb. 

0.1.  (A)  Shujr  v.  Holdway,  Dan. 

(,t,  1   Ws.  Jr.  138.  Ch.  l*r.  LI 

('■j    Wynne  v.  Lord  A'<  wbor- 
ough,  Hi.  id. 


POWERS   AND   DUTIES   OF   RECEIVER.  211 

Frauds.(/)  If  a  receiver  grants  a  lease  for  a  longer 
period  than  three  years,  the  lease  will  be  binding  as 
between  him  and  the  party  who  takes  the  lease,  because 
the  latter  cannot  be  suffered  to  repudiate  his  agree- 
ment and  say  that  the  lease  is  invalid  on  the  ground 
that  it  was  not  made  by  the  person  having  the  legal 
estate  or  power  of  leasing.^')  As,  however,  between 
the  lessee  and  the  owner  of  the  legal  estate,  the  lease 
has,  in  the  absence  of  special  circumstances,  no  binding 
force,  even  though  it  may  have  been  made  with  the 
sanction  of  the  judge.  The  powers  of  the  receiver  are 
limited  to  the  receiving  proposals,  and  making  arrange- 
ments as  to  the  leasing  of  the  property,  and  granting 
the  parol  lease  before  referred  to.  lie  has  no  power 
to  transfer  the  legal  estate  in  the  property  over  which 
he  has  been  appointed  receiver,  nor  can  such  a  power 
be  given  to  him  by  the  judged)  Leases  of  property 
in  the  hands  of  a  receiver  should  be  made  or  signed 
by  the  person  having  the  legal  estate  or  powTer  of 
leasing.  If  necessary,  recourse  is  to  be  had  to  the 
provisions  of  the  various  statutes  conferring  jurisdic- 
tion on  the  court  to  sanction  leases.(7) 

A  receiver  should  move  for  liberty  to  let  before  the 
old  lease  expires;  although,  if  he  neglect  to  do  so,  he 
will  be  at  liberty  to  make  what  he  can  of  the  estate 
during  the  current  year,  he  will  be  visited  with  any 
loss  which  may  arise.(m) 

(?')  29  Car.  2,  c.  2.  Madd.  469 ;  Evans  v.  Matthias, 

(j)    Dancer    v.    Hastings,   4     7  E.  &  B.  602  ;  supra,  p.  202. 
Bing.  2  ;  12  iAIoo.  34.  {I)  Dan.  Ch.  Fr.  1727  et  seq. 

{k)  See  Gibbons  x.  Howell,  3        (m)  Wilkins  v.  Lynch,  2  Moll. 

499. 


212  POWERS    AND   DUTIES   OF   RECEIVER. 

"Where  the  court  directs  the  receiver  to  give  any 
one  the  option  of  being  tenant,  it  reserves  power  to 
the  receiver  to  inspect  the  state  and  condition  of  the 
property.(n) 

In  cases  where  the  estate  over  which  a  receiver  is 
appointed  is  in  the  colonies,  the  East  Indies,  or  a 
foreign  country,  it  is  usual  to  give  the  receiver  more 
extensive  powers  of  managing  and  letting  than  in  the 
case  of  estates  situated  in  this  country. (o)  An  inquiry 
is  generally  directed  to  ascertain  the  terms  beyond 
which  the  receiver  shall  not  be  permitted  to  let.  This 
is  done  with  the  view  of  preventing  the  necessity  of 
constant  applications  to  the  court  for  permissions  to 

let.(p) 

A  receiver  must  let  the  estate  over  which  he  is  act- 
ing as  receiver,  to  the  best  advantage.  He  is  bound  to 
obtain  the  best  terms.(^)1  He  may  not,  either  in  his 
own  name  or  through  the  medium  of  a  trustee,  become 
a  tenant  of  any  part  of  the  estate  over  which  he  is 
acting  as  receiver.(r)  A  receiver  cannot  raise  the 
rents  on  slight    grounds    without    the   leave    of   the 

(n)  Baylies  v.  Baylies,  1  Coll.  (r)  Meagher  v.  O'Shaugnessy, 

545.  cit.  PL  &  K.  207,  224;  see  An- 

(o)  Morris  v.  Elme,  1  Ves.  Jr.  derson  v.  Anderson,   9  Ir.  Eq. 

130.  23;    Eyre  v.  McDonnell,  15  Ir. 

(  p)  —  v.  Lindsay,  ]  5  Ves.  91.  Ch.  f)34  ;  Comp.  King  v.  O'Brien 

{q)   Wynne  v.  Lord  Newbor-  15  L.  T.  N.  S.  ~:*. 
ongh,  1  Ves.  Jr.  164. 

1  He  Is  bound  not  only  to  obtain  the  besl  rent,  but  also  to  lease  to 
those  who  would  take  the  best  care  of  tlic  property.  See  Knott  v. 
The  Receivers  of  the  Morris  Canal  Co.,  3  Green,  C.  R.  42G ;  also 
Ballet  v.  Ditf,  87  How.  Pr.  B,  L62. 


POWERS   AND   DUTIES   OF   RECEIVER.  213 

court,(s)  nor  can  he  abate  the  rents  or  forgive  the 
tenants  their  arrears  without  the  consent  of  the  par- 
ties beneficially  interested. (t) 

Mode  in  which  Proposals  for  Leases  are  dealt  with. 
— Applications  with  reference  to  property  under  the 
management  of  a  receiver  are  usually  made  by  sum- 
mons at  chambers.(w)  The  judge  at  chambers  receives 
proposals  for  the  management  and  letting  of  the  estate 
from  the  parties  interested,  and  gives  his  directions 
thereon. 

The  usual  course  is  for  the  proposed  tenant  to  enter 
into  a  provisional  agreement  to  become  tenant  or  lessee 
of  the  property  upon  the  terms  therein  specified,  sub- 
ject, however,  to  the  approval  of  the  judge.  A  sum- 
mons for  an  order  to  carry  the  agreement  into  effect  is 
then  taken  out  by  the  plaintiff's  solicitor  and  served 
on  the  parties  interested.  The  application  is  supported 
by  the  production  of  the  agreement  and  the  affidavit 
of  a  land  agent,  or  other  competent  person,  stating 
the  grounds  on  which,  in  his  judgment,  the  agreement 
should  be  adopted. (v)  The  power  to  demise  on  the 
terms  specified  must  also  be  shown  by  proper  evidence. 
If  the  agreement  is  approved,  either  an  order  is  made 

(s)    Wynne  v.  Lord  Neiobor-  applications,  Set.  on  Deer.  1012 

ough,  1  Ves.  Jr.  164.  et  seq. 

{t)  Evans  v.   Taylor,  Sau.  &        (v)  Dan.  Ch.  Pr.  1157  ;  Smith, 

Sc.  681.  Ch.  Pr.  1033  ;  see  as  to  form  of 

(u)  Dan.  Ch.  Pr.  1587;  Set.  summons  to  approve,  of  agree- 
on  Deer.  1017  ;  see  as  to  form  of  ment  to  grant  a  lease,  and  of  affi- 
summons,  3  Dan.  Ch.  Pr.  1746-  davits  to  support,  3  Dan.  Ch.  Pr. 
1750  ;  see  form  of  orders  on  such  1281,  1282. 


214  POWERS   AND   DUTIES    OF   RECEIVER. 

directing  it  to  be  carried  into  effect,  and  that  the  lease 
to  be  granted  in  pursuance  thereof  be  settled  by  the 
judge,  either  absolutely  or  in  case  the  parties  differ; 
or,  to  save  expense,  the  chief  clerk  endorses  a  minute  of 
the  approval  on  the  summons,  and  adjourns  the  matter 
till  the  draft  lease  has  been  brought  in  for  approval. 
Upon  the  draft  lease,  or  a  certified  copy  of  the  order 
(if  any),  approving  the  agreement,  being  left  at 
chambers,  a  summons  is  taken  out  to  settle  the  draft 
lease  ;(x)  or  if  no  order  has  been  drawn  up,  an  appoint- 
ment for  this  purpose  is  given.  The  summons  or  ap- 
pointment is  then  served  on  the  parties  interested. 
The  draft  lease  is  then  settled  either  by  the  judge  or 
his  chief  clerk,  with  the  assistance,  if  necessary,  of 
one  of  the  conveyancing  counsel.  The  draft  is  then 
engrossed,  and  an  affidavit  verifying  the  engrossment 
of  the  lease,  and  of  the  counterpart  (if  any),  is  brought 
in,  and  the  chief  clerk  signs  a  memorandum  of  allow- 
ance in  the  margin  of  each  engrossment.  An  affidavit 
is  then  made  verifying  the  engrossment  with  the 
draft  as  settled.  A  copy  of  the  affidavit  is  left  at 
chambers,  with  the  engrossment  and  draft.(y)  The 
chief  clerk  then  signs  the  memorandum  in  the  margin 
of  each  engrossment,  and  issues  his  certificate  that 
the  lease  has  been  settled,  or  if  an  order  approving  the 
agreement  lias  been  drawn  up,  an  order  is  made  ap- 


(x)  See  as  to  form  of  summons  Ch.  Pr.  1033;  see  as  to  form  of 

ttle   draft   lease,  Hi.  117">,  affidavit    verifying  engrossment 

1283.  of  lease  and  counterpart,  3  Dan. 

(>/)  Dan. Oh.  Pr.  1157 j  Smith  Ch.  Pr.  1284. 


POWERS    AND   DUTIES   OF   RECEIVER.  215 

proving  the  agreement  and  the  lease.     The  certificate 
is  completed  in  the  usual  way.(^) 

Power  of  Receiver  to  give  Notice  to  quit.— A  receiver 
appointed  by  the  Court  of  Chancery,  with  a  general 
authority  to  let  the  lands  from  year  to  year,  has 
thereby  also  an  implied  authority  to  determine  such 
tenancies  by  regular  notices  to  quit.(a)  In  Mansfield 
v.  Hamilton, (b)  Lord  Redesdale  said  that  the  tenants 
of  an  estate  being,  under  the  circumstances  of  the  case, 
tenants  from  year  to  year  to  the  receiver,  he  would 
not  turn  them  out  without  notices  to  quit. 

If  a  tenant  hold  on  after  regular  notice  to  quit  given 
to  him  by  a  receiver,  the  Court  of  Chancery  will  give 
the  receiver  leave  to  sue  the  tenant  for  double  the 
yearly  value  of  the  premises,  under  the  4  Geo.  II.,  c.  28, 
s.  l.(fi) 

Receiver  must  not  involve  Estate  in  Expense.— As  a 
general  rule,  a  receiver  must  do  no  act  which  may 
involve  the  estate  in  expense  without  the  sanction  of 
the  court.  It  is  not  proper  for  a  receiver  to  defend 
actions  which  may  be  brought  against  him  without 
the  sanction  of  the  judge.(cf)     In  a  case  where  a  re- 


(z)  Dan.  Ch.  Pr.  1157  ;  Smith  Crosbie  v.  Barry,  Jon.  &  C.  106  ; 

Ch.  Pr.  1033 ;  see  as  to  form  of  Wilkinson    v.     Colly,    4   Burr, 

certificate  of  settlement  of  lease,  2697. 

3  Dan.  Ch.  Pr.  1286  ;  as  to  min-  (&)  2  Sch.  &  Lef.  30. 

utesof  order  approving  the  agree-  (c)  Wilkinson  v.  Colly,  4  Burr, 

ment  and  the  lease  to  be  issued  in  2694. 

pursuance  thereof,  lb.  1287.  (d)  Anon.,  6  Yes.  287  ;  Sivaby 

(a)  Doe  v.  Read,  12  East,  61 ;  v.  Dinkon,  5  Sim.  629.     The  re- 


216  POWERS    AND    DUTIES    OF   RECEIVER. 

ceiver  had,  without  the  authority  of  the  court,  de- 
fended an  action  arising  out  of  a  distress  made  by  him 
upon  a  tenant  of  the  estate  for  rent,  and  was  unsuc- 
cessful, the  court  refused  to  allow  him  his  costs  of  the 
action.(e)  But  if  he  defends  an  action  brought  against 
him  successfully,  without  putting  the  estate  to  the 
expense  of  an  application  to  the  court,  which  he 
might  have  made  for  his  own  benefit,  he  has  the  same 
right  to  be  indemnified  as  if  he  had  applied  to  the 
court.(/) 

Nor  can  a  receiver  bring  ejectment  without  the 
leave  of  the  court.(^)1 

A  motion,  however,  on  the  part  of  the  tenants  of 
an  estate  to  restrain  a  receiver  from  doing  acts  which 
are  within  his  authority,  will  be  rejected  with  costs, 
as  they  have  no  sufficient  interest  to  support  it.(/i) 

Power  of  Receiver  as  to  Repairs.— A  receiver  may 
lay  out  small  sums  of  money  in  customary  repairs,  or 

ceiver  should  not  wait  to  apply  turbance,  the  tenant  is  entitled  to 

for  leave  to  defend  an  action  till  the  costs  of  protecting  his  own 

just  before  trial.     Anon.,  6  Ves.  possession.     Miller  v.  Elkins,  3 

286.  L.  J.  Oh.  128. 

(e)  Stoaby  v.  Dickon,  5  Sim.  (<j)  Wynne  v.  Lord  Neiobor- 

629;  see  Re  Montgomery,!  Moll,  omjh,  1  Yes.  Jr.   164;  3  Bro. 

■I  1 9.  C.  0.  87 ;   Ward  v.  Swift,  6  Ha. 

(/)  Briatowe  v.  Needham,  2  312 ;  see  Mansfield  v.  Hamilton, 

rh.  L90.     if  the  possession  of  a  2  Sch.  &  Lef.  28. 

tenant  under  the  receiver  is  dis-  (h)    Wynne  v.  Lord  Newbor- 

turbed,and  do  application  is  made  uuyh,  3  Bro.  C.  C.  87. 
to  the  court  to  prevent  that  dis- 

1  Sec  Qreen  v.  Winter,  1  John.  0.  It.  60;  and  page  206,  note  1, 
ante,  and  the  cases  there  cited. 


POWERS    AND   DUTIES    OF   RECEIVER.  217 

may  allow  the  same  to  the  tenant,  but  he  may  not 
apply  moneys  in  repairs  to  any  considerable  extent, 
without  a  previous  application  to  the  judge.(7)  It 
appears  to  have  been  formerly  the  rule  that  a  receiver 
could  not  lay  out  any  moneys  on  the  estate  at  his  own 
discretion  and  without  the  leave  of  the  court.(&)  The 
rule  is  not  so  strict  now  as  it  formerly  was,  but,  as  a 
general  rule,  a  receiver  should  not,  it  would  seem, 
expend  at  his  own  discretion  more  than  30£.  a  year 
without  the  sanction  of  the  judge.(7)  If,  however, 
more  has  been  expended  by  him  than  a  receiver  is 
authorized  to  do  at  his  own  discretion,  the  course  of 
the  court  is  to  direct  an  inquiry  into  the  circumstances 
of  the  expenditure,  and  to  allow  the  amount  so  ex- 
pended, if  upon  inquiry  the  expenditure  has  been 
reasonable,  and  be  found  to  have  been  beneficial  to  the 
estate.(w) 

Since  the  15  &  16  Vict.,  c.  80,  application  as  to 
repairs  is  to  the  judge  in  chambers,  where  the  matter 
is  inquired  into  without  previous  order  before  the 
repairs  are  authorized  to  be  dorie.(n) 


(?)  Ait. -Gen.  v.  Vigor,  11  Ves.  the  receiver  stating  the  propriety 

563  ;   Waters  v.  Taylor,  15  Ves.  of  the  intended  expenditure,  and 

25.  the  maximum  amount  to  be  laid 

(k)   Fletcher  v.  Dodd,  1  Ves.  out.     lb. 

Jr.  85  ;  Morris  v.  Elme,  lb.  139;  (m)  Blunt  v.  Clitherow,  6  Ves. 

see  Tempest  v.  Ord,  2  Mer.  56.  799  ;  Att.-Gen.  v.  Vigor,  11  Ves. 

{I)    Dan.    Ch.    Pr.     1586,    n.  563;    Tempest  v.   Orde,  2    Mer. 

Where  the  amount  proposed  to  56.     Comp.  Re  Langham,  2  Ph. 

be  expended   by  the  receiver  is  299. 

small,  the  sanction  of  the  judge  (n)  See  as  to  order  giving  the 

will   be  given  on  production   to  receiver  liberty  to  expend  moneys 

the  chief  clerk  of  a  letter  from  in  repairs,  Set.  on  Deer.  1014. 


218  POWERS    AND    DUTIES    OF  RECEIVER. 

If,  from  their  amount,  or  the  circumstances  under 
which  the  moneys  for  repairs  are  claimed,  the  receiver 
feels  any  difficulty  in  allowing  them,  he  should  apply 
to  the  plaintiff's  solicitor  to  obtain  the  sanction  of  the 
judge.  In  order  to  obtain  it,  the  plaintiff's  solicitor 
takes  out  a  summons  to  the  effect  that  the  receiver 
appointed  in  the  cause  may  be  directed  to  execute  the 
repairs  specified  in  the  affidavits,  and  to  expend  moneys 
not  exceeding  a  certain  specified  sum  of  money,  the 
estimated  cost  thereof,  and  that  he  may  be  allowed 
the  amount  he  may  so  expend  in  passing  his  accounts 
in  the  cause.  The  summons  is  supported  by  evidence 
that  the  tenants  are  not  liable  to  do  the  repairs,  that 
the  repairs  should  be  made,  and  that  the  amount  pro- 
posed to  be  expended  is  fair  and  reasonable.  The  order 
is  drawn  up  by  the  registrar  in  the  usual  way.(o) 

Various  Applications  as  to  the  Management  of  the 
Estate.— An  order  may  be  obtained  in  chambers  that 
the  receiver  should  cut  and  sell  timber,  and  employ  it, 
if  necessary,  in  repairs.(p)  The  court,  before  giving 
liberty  to  cut  timber  for  repairs,  will  direct  inqiiiries.(^) 
Where  there  is  a  receiver,  a  sale  of  timber  is  generally 
under  his  direction.(r)1 

(o)  Smith, Ch.  IV  1034;  see  3        (</)  lb. 
Dan.  Oh.  Pr.  L750.  (r)  lb.  1017. 

(p)  Set.  on  Deer.  101  1. 

1  A  receiver  may  in  a  proper  ease  apply  to  the  court  for  advice  ; 
hut  where  'lie  court  has  directed  him  to  do  a  specific  act,  Btich  as  to 
poll  property,  lie  mini  act  upon  liis  own  responsibility  in  carrying 
out  the  details.     Qivin  v.  Qivin,  I   Leir.  <iaz.  48. 


POWERS   AND   DUTIES   OF   RECEIVER.  219 

A  receiver  may  obtain  an  order  to  grant  a  license  to 
win  and  get  clay  and  brick  earth  on  the  estate,  and 
manufacture  the  same  into  bricks.(s) 

Equity  where  Estate  of  Stranger  comes  into  possession 
of  Receiver.— Where  the  estate  of  a  stranger  has  come 
into  the  possession  of  a  receiver  in  the  cause,  and  has 
been  held  with  the  acquiescence  of  such  of  the  parties 
to  the  suit  as  were  not  under  disability,  and  no  objec- 
tions have  been  raised  on  behalf  of  any  of  the  parties 
under  disability,  the  transaction  is  binding  on  the 
parties;  and  the  receiver  in  the  cause  will  be  ordered 
to  pay  the  arrears  of  rent,  and  will  be  held  responsible 
for  dilapidations,  the  amount  of  which  particulars 
shall  be  ascertained  upon  inquiry.(0  This  will  be 
ordered  on  petition  of  the  owner  of  the  estate,  though 
not  a  party  to  the  suit,  without  requiring  him  to  file  a 
cross-bill. (m) 

Lessee  of  Land  in  Possession  of  Receiver  restrained 
from  committing  Waste.— If,  after  a  receiver  has  been 
appointed,  a  person  has  entered  into  an  agreement 
with  a  receiver  to  take  the  lease  of  a  farm,  a  bill  need 
not  be  filed  to  restrain  the  lessee  from  committing 
waste.  The  court  will,  on  the  application  of  the 
plaintiff  in  the  cause,  grant  an  injunction  on  motion 
in  a  summary  way,  though  he  was  not  a  party  to  the 
suit.(a;) 

(s)  lb.  1014.  (x)    Walton    v.    Johnson,    15 

(I)   Neate   v.    Pink,    15  Sim.     Sim.    352;    see     Casamajor   v. 

452  ;  3  Mac.  &  G.  484.  Strode,  1  Sim.  &  St.  381. 
(«)   lb. 


220  POWERS   AND   DUTIES   OP   RECEIVER. 

An  incumbrancer  on  an  annuity  which  a  receiver 
in  the  cause  was  ordered  to  pay  to  a  lady,  was  refused 
an  order  for  the  payment  of  the  annuity  on  petition. 
The  incumbrancer  not  being  a  party  to  the  suit,  the 
court  held  that  a  bill  must  be  filed.(y) 

Duty  of  Receiver  of  Leaseholds.— The  receiver  is  the 
officer  upon  whom  the  performance  of  the  obligations 
imposed  by  the  possession  of  the  land  is  devolved.1  A 
receiver  over  leaseholds  is  bound,  in  the  first  place,  out 
of  the  sub-rents,  to  discharge  the  head-rent  where  the 
right  of  the. landlord  is  unquestionable  and  undisputed, 
without  an  order  from  the  court  for  that  purpose.  If 
in  consequence  of  his  default  the  landlord  is  compelled 
to  institute  proceedings  for  the  recovery  of  the  rent, 
the  receiver  is  held  liable  for  costs,  if  rents  have 
reached  his  hands.  The  rents  should  be,  in  the  first 
place,  appropriated  in  payment  of  the  head-rent.  When 
that  is  discharged,  whatever  surplus  remains  should 
be  distributed  according  to  the  interest  of  the  parties 
in  the  cause,  and  the  order  of  the  court.  If  the  re- 
ceiver pursues  a  different  course,  and  if  in  paying 
away  the  rent  received  he  choose  to  speculate  upon 
obtaining  other  funds  wherewith  to  pay  the  head-rent, 
he  does  not  act  in  accordance  with  the  order  of  the 
court,  and  will  be  compelled  by  the  court  to  pay  the 
arrears  of  head-rent.(z) 

(y)  Wastell  v.  Leslie,  cited  15  (as)  Balfe  v.  Balfe,  1  Ti\  Ch. 
Sim.  453.  365. 


1  Where  :i  lease  contains  a  clause  against  alienation  without  the 
content  of  the  lessor,  such  a  clause  is  binding  on  the  receiver. 
Spencer  v.  Darlington,  24  P.  P.  Smith,  '28G. 


POWERS   AND   DUTIES   OF   RECEIVER.  221 

If  any  dispute  or  uncertainty  as  to  the  amount  of 
rent  due  to  the  head  landlord  exist,  the  safer  course  is 
to  apply  for  a  reference  to  ascertain  the  amount,  or  the 
receiver  may  wait  until  the  landlord  makes  an  appli- 
cation on  the  subject,  when  he  should  appear  by  his 
solicitor,  state  the  fact,  and  have  the  order  shaped 
accordingly,  (a) 

Duty  of  Receiver  when  the  Tenants  are  interfered  with. 
— When  the  receiver  is  informed  by  the  tenants  that 
the  defendants  have  interfered  with  the  rents,  it  is  his 
duty  to  move  for  an  attachment ;  and  it  is  sufficient  if 
he  swear  that  he  had  the  information  from  the  tenants, 
and  that  he  believes  it.(ft)  The  interference  of  the 
owner  of  the  inheritance  with  the  rents  does  not 
exempt  the  receiver  from  being  charged  with  the  whole 
amount,  but  he  must  discharge  himself  by  showing 
what  the  owner  of  the  inheritance  received,  or  hindered 
him  from  getting.(c) 

Duty  of  Receiver  not  to  interfere  between  the  Parties. 
— The  receiver  ought  not  to  interfere  in  any  litigation 
between  the  parties.  If  he  does  so,  he  will  not  be 
allowed  the  costs  of  a  motion  for  such  a  purpose.  It 
is  the  duty  of  a  receiver  to  receive  the  rents  and 
collect  the  moneys  without  raising  any  controverted 
question  between  the  parties.(^) 


(a)  lb.  (d)  Comyn,  v.  Smith,  1  Hog. 

\b)  Anon.,  2  Moll.  49-9.  81. 

(c)  Hamilton  v.  Lighton,  lb. 
499. 


222  POWERS    AND    DUTIES   OF   RECEIVER. 

Applications  in  respect  of  the  Estate  should  be  made 
by  the  Persons  beneficially  entitled,  not  by  the  Receiver. 
— All  applications  to  the  court  in  respect  of  estates  in 
the  hands  of  a  receiver  should,  as  a  general  rule,  be 
made  on  behalf  of  persons  beneficially  interested  in 
the  estate,  and  not  by  the  receiver.  A  receiver  ought 
not  to  present  a  petition  or  originate  any  proceedings 
in  the  cause.(e)  If  an  application  to  the  court  become 
necessary,  the  receiver  should  apply  to  the  party  con- 
ducting the  proceedings,  or  probably  to  any  other 
party  to  the  suit,  at  whose  instance  he  may  have  been 
appointed,  to  make  the  necessary  application.  If  after 
he  has  done  so  no  application  be  made,  and  no  proper 
means  be  taken  to  relieve  the  receiver  from  his  diffi- 
culty, he  may  apply  himself  and  will  be  entitled  to  his 
costs.(/)  In  a  case  where  a  receiver  had  incurred  costs 
in  the  execution  of  his  duties,  and  the  parties  to  the 
suit  had  neglected  for  a  long  time  to  provide  for  them, 
it  was  held  that  he  was  justified  in  presenting  a  peti- 
tion for  payment. (g) 

It  must,  however,  be  observed  that,  in  several  cases 
to  be  found  in  the  books,  receivers  have  even  originated 
proceedings  in  their  own  name  without  any  observa- 

(c)  Miller  v.  Elkins,  3  L.  J.  the  concurrence  of  the   commit- 

Ch.    128;    Ireland   v.    Eade,  7  tee.    Re  Earl  of  Kilkenny, lit. 

IJeav.  .rif> ;    Parker    v.  Dunn,  8  Eq.  594. 

Beav.  A'JH;  see  Duke  of  Dorset  (/)  Ireland  v.  Eade,  7  Bear, 

v.     Crosbie,    Sau.    &    Sc.    683;  55;    Parker  v.    Dunn,  8  Beav. 

Clarke  v.  Eishcr,  lb.  C84;  Evans  498 ;  see  Miller  v.  Elkins,  3  L.  J. 

V.  Taylor,  lb.  681.    The  receiver  Ch.  128. 

of  tlie  estate  of  a  lunatic  should  (</)  Ireland  v.  Eade,  7  Beav. 

not   present  a   petition    without  5."). 


POWERS    AND   DUTIES   OF   RECEIVER.  223 

tions  having  been  made  as  to  the  impropriety  of  such 
a  course. (A) 

In  some  cases,  indeed,  it  is  necessary  that  the  re- 
ceiver should  join  in  the  proceedings.  Thus,  if  the 
receiver  pay  moneys  in  his  hands  to  the  solicitors  of 
the  plaintiff,  who  are  also  his  own  solicitors,  without 
any  previous  instructions  as  to  the  specific  application 
of  the  moneys,  the  moneys  are  to  be  considered  to  be 
paid  to  them  as  the  solicitors  of  the  receiver  and  not 
of  the  plaintiffs ;  and  the  receiver  must  be  a  party  to 
an  application  for  payment  of  the  moneys  into  court 
by  the  solicitors. (i) 

A  party  to  a  cause  does  not  by  being  appointed 
receiver  thereby  lose  his  privilege  as  a  party  to  the 
cause,  and  may  apply  to  the  court,  as  if  he  did  not 
hold  the  ofiice.(/t) 

(7i)  See  Mills  v.  Fry,  Coop,  the  purpose,  but  that  if  the  case 
107  ;  Wickens  v.  Townsend,  1  R.  is  not  urgent,  he  should  apply  to 
&  M.  361 ;  Birth  v.  Oldis,  Sau.  the  court.  Nangle  v.  Lord  Fin- 
&  Sc.  146  ;  Cronin  v.  Mc  Carthy,  gal,  1  Hog.  142. 
Fl.  &  K.  49  ;  Evelyn  v.  Lewis,  (i)  Chater  v.  Maclean,  1  Jur. 
3  Ha.  472;  see  also  Shaiv  v.  N.  S.  175  ;  see  Delfosse  v.  Craw- 
Rhodes,  2  Russ.  539.  It  was  shay,  4  L.  J.  Ch.  N.  S.  32  ; 
said  in  an  Irish  case,  that  a  Dixon  v.  Wilkinson,  4  Drew, 
receiver  may  file  a  bill  to  re-  614  ;  4  D.  &  J.  508. 
strain  waste  if  the  case  is  urgent,  (Jc)  Crisp  v.  Platel,  2  Ph.  229. 
without  waiting  for  an  order  for 

Before  leaving  the  general  subject  of  the  powers  and  duties  of 
receivers  a  brief  notice  of  some  of  the  American  authorities  may  be 
desirable,  especially  in  view  of  the  fact  that  in  this  country  the 
powers  of  receivers  have  been  extended  both  by  statute  and  by  judicial 
decisions.  "  In  the  progress  and  growth  of  equity  jurisdiction," 
says  Mr.  Justice  Swayne  in  Davis  v.  Gray,  16  Wal.  219,  "it  has 
become  usual  to  clothe  such  officers  with  much  larger  powers  than 


224  POWERS    AND   DUTIES   OF   RECEIVER. 

were  formerly  conferred.  In  some  of  the  States  they  are  by  statutes 
charged  with  the  duty  of  settling  the  affairs  of  certaiu  corporations 
when  insolvent,  aud  are  authorized  expressly  to  sue  in  their  own 
names.  It  is  not  unusual  for  Courts  of  Equity  to  put  them  in  charge 
of  the  railroads  of  companies  which  have  fallen  into  financial  embarass- 
ment,  and  to  require  them  to  operate  such  roads  until  the  difficulties 
are  removed  or  such  arrangements  are  made  that  the  roads  can  be 
sold  with  the  least  sacrifice  of  the  interests  of  those  concerned.  In 
all  such  cases  the  receiver  is  the  right  arm  of  the  jurisdiction  invoked. 
As  regards  the  statutes,  we  see  no  reason  why  a  Court  of  Equity,  in 
the  exercise  df  its  undoubted  authority,  may  not  accomplish  all  the 
best  results  intended  to  be  secured  by  such  legislation  without  its 
aid." 

In  England,  also,  the  tendency  seems  to  be  towards  enlarging  the 
scope  of  receiverships ;  see  Munns  v.  Isle  of  Wight  Railway  Co., 
L.  R.  5  Ch.  App.  414;  Pell  v.  Northampton  and  Banbury  Junction 
Railway  Co.,  2  Id.  100 ;  and  Cozens  v.  Bognor  Railway  Co.,  1  Id. 
594. 

In  Davis  v.  Gray,  16  Wal.203  (affirming  S.  C.  in  1  Woods,  420) 
the  complainant,  a  citizen  of  New  York,  who  had  been  appointed 
receiver  of  the  Memphis,  El  Paso,  and  Pacific  Railroad  Company, 
filed  a  bill  in  the  U.  S.  Circuit  Court  to  restrain  the  governor  aud 
commissioner  of  the  land  office  of  the  State  of  Texas  from  issuing  any 
further  patents  to  third  parties  for  lands  reserved  to  the  company. 
By  the  terms  of  his  appointment  the  receiver  was  authorized  "to  bring 
such  suits  in  the  name  of  said  company  or  in  the  name  of  said  re- 
ceiver as  he  may  be  advised  by  counsel  to  be  necessary  and  proper 
in  the  discharge  of  the  duties  of  his  office,  and  for  acquiring,  securing, 
and  protecting  the  assets,  franchises,  and  rights  of  the  said  company, 
and  of  the  said  receiver,  and  of  securing  and  protecting  the  land-grant 
and  land  reservation  of  the  said  company."  It  was  held  that  the 
complainant  was  entitled  to  the  relief  prayed  for.  See  this  case  for 
a  resume'  on  pp.  217-218  of  the  decisions  upon  the  duties  of  re- 
ceivers.    See  also  McNab  v.  Noonan,  28  Wise.  434. 

The  rights  of  a  receiver  may  sometimes  rise  higher  than  those  of 
the  party  of  whose  property  he  has  been  appointed  the  custodian. 
Thus  in  Talmage  v.  Pell,  3  Selden,  328,  following  Gillet  v.  Moody, 
3  Comst.  479,  it  was  said  that  a  receiver  of  an  insolvent  company  was 
a  trustee,  not  only  for  stockholders  but  for  creditors  also  ;  and  it  was 
accordingly  held  that  the  receiver  was  entitled  to  repudiate  an  ille- 
gal transfer  by  the  officers  of  the  company's  securities  and  claim 
them  as  part  of  the  fund.     Sec  also  Porter  v.  Williams,  5  Selden, 


POWERS    AND    DUTIES    OF   RECEIVER.  225 

142 ;  Wilson  v.  Allen,  6  Barb.  544 ;  3IcHarg  v.  Donelly,  27  Id. 
103  ;  Osgood  v.  Laytin,  3  Abb.  App.  Dec.  418  ;  Agricultural 
Bank  v.  Burr,  24  Maine,  256.  And  although  it  was  said  in  Hyde 
v.  Lynd,  4  Comst.  393,  that  a  receiver  of  the  effects  of  a  party  who 
had  made  a  transfer  of  property  fraudulent  as  to  creditors,  could  not 
avoid  the  grant,  because  his  rights  rose  no  higher  than  those  of  the 
fraudulent  grantor;  yet  a  different  rule  seems  now  be  recognized. 
See  Foster  v.  Toxonshend,  12  Abb.  Prac.  R.  (N.  S.)  469.  In 
Ruggles  v.  Brock,  6  Hun,  164,  it  was  held  that  a  receiver  of  an  in- 
solvent corporation  represented  creditors  as  well  as  stockholders ; 
and  that  in  an  action  by  him  to  recover  unpaid  subscriptions  to  stock, 
it  was  not  a  defence  that  the  subscriptions  had  been  obtained  by  mis- 
representations. See  also  Lathrop  v.  Knapp,  27  Wis.  215  ;  and 
Butterworth  v.  O'Brien,  24  How.  Pr.  R.  438.  In  Indiana,  however, 
the  rule  in  Hyde  v.  Lynd,  seems  to  be  followed.  See  La  Follett  v. 
Akin,  36  Ind.  1.  So  also  in  New  Jersey  under  the  act  to  prevent 
fraudulent  trusts  and  assignments.  See  Higgins  v.  Gillesheiner,  11 
C.  E.  Green,  308. 

While  a  receiver  is  ordinarily  but  a  custodian  of  the  property,  yet 
it  is  sometimes  his  duty,  under  order  of  court,  to  convert  it  into  cash, 
and  sales  by  receivers  are  frequent. 

Thus,  where  property  in  which  the  complainant  and  defendant  are 
both  interested  is  likely  to  be  sold  by  the  party  holding  the  legal 
title  (the  defendant)  in  a  manner  prejudicial  to  the  interests  of  the 
complainant,  the  court  will  appoint  a  receiver  to  make  the  sale. 
Marvine  v.  Drexel,  18  P.  F.  Smith,  368.  And  see  this  case  for  form 
of  order. 

In  sales  by  a  receiver,  a  purchaser  is  not  bound  to  inquire  whether 
any  errors  intervened  in  the  action  of  the  court  or  irregularities  were 
committed  by  the  receiver  in  the  sale.  It  is  sufficient  for  him  to  see 
that  there  is  a  suit  in  equity,  or  was  one,  in  which  the  court  ap- 
pointed a  receiver  of  property  ;  that  such  receiver  was  authorized  by 
the  court  to  sell  the  property  ;  that  a  sale  was  made  under  such  au- 
thority ;  that  the  sale  was  confirmed  by  the  court,  and  that  the 
deed  accurately  recites  the  property  or  interest  thus  sold.  If  the 
title  to  the  property  was  vested  in  the  receiver  by  the  order  of  the 
court,  it  would  in  that  case  pass  to  the  purchaser.  Koontz  v.  The 
Northern  Bank  of  Kentucky,  16  Wal.  196. 

See  further  as  to  sales  by  receiver,  Simon  v.  Wood,  45  How. 
Pr.  R.  262  ;  National  Bank  of  Metropolis  v.  Sprague,  5  C.  E. 
Green,  170;  and  Lane  v.  Lutz,  3  Abb.  19. 

The  intendment  of  the  law  is  in  favor  of  a  reasonable  authority  on 

15 


226  POWERS    AND    DUTIES   OF   RECEIVER. 

the  part  of  receivers.  Thus,  where  the  receivers  of  a  bank  trans- 
ferred a  promissory  note  which  was  part  of  the  bank  assets  to  a 
bank  creditor,  the  presumption  was  that  this  disposition  was  within 
the  scope  of  their  authority,  and  that  the  creditor  took  a  good  title 
to  the  note.  Atchison  v.  Davidson,  2  Pinney  (Wis.)  48.  See, 
however,  Mann  v.  Fair  child,  3  Abb.  App.  Dec.  152. 

A  sale  by  a  receiver  should  not  be  ordered  by  an  inferior  court, 
pending  an  appeal  to  a  higher  court.  McNab  v.  Noonan,  28  Wise. 
434. 

A  receiver  may  under  certain  circumstances  receive  debts  before 
they  become  due.     Olcott  v.  Heermans,  3  Hun,  431. 

Where  a  court  has  no  poiver  to  make  an  order  appointing  a 
receiver,  such  an  order  may  be  reviewed  on  appeal.  See  Fellows  v. 
Heerenans,  13  Abb.  Pr.  R.  (N.  S.)  1,  and  remarks  of  Allen,  J.,  on 
page  3,  and  of  Grover,  J.,  on  pp.  15  and  16.  See,  on  this  subject, 
note  to  p.  149 ;  Wilson  v.  Davis,  1  Montana,  98 ;  and  Barry  v. 
Briggs,  22  Mich.  201. 


CHAPTER  VIII. 


LIABILITIES  OF  A  RECEIVER. 


A  receiver  is  responsible  for  any  loss  occasioned  to 
the  estate  from  his  wilful  default. (a)1  If  he  places 
the  moneys  received  by  him  in  what  he  knows  to  be 
improper  hands,  he  will  have  to  answer  the  loss  out  of 
his  own  pocket.(6)  A  receiver,  however,  is  not  ex- 
pected any  more  than  a  trustee  or  executor,  to  take 
more  care  of  the  property  intrusted  to  him  than  he 
would  of  his  own.(c)  If  he  deposits  the  moneys  for 
safe  custody  with  a  banker  in  good  credit,  to  be  placed 
to  his  account  in  the  character  of  a  receiver,  he  will 
not  be  answerable  for  the  failure  of  the  banker.(^) 
The  money  must,  however,  be  deposited  to  the  account 
of  the  receiver  in  that  character,  or  be  otherwise  ear- 


(a)  Skerrett's  Minor,  2  Hog.  (d)  Knight  v.  Lord  Plymouth, 
192.  3  Atk.  480;   1   Dick.   120;   see 

(b)  KnightY.  Lord  Plymouth,  Rowth  v.  Hoivell,  3  Yes.  565; 
3  Atk.  480.  Wren  v.  Kirton,  11  Ves.  381 ; 

(c)  1  J.  &  W.  247;  per  Lord  Massay  v.  Banner,  1  J.  &  W. 
Eldon.    Comp.  White  v.  Baugh,  247  ;  Salway  v.  Salway,  4  Russ. 


9  Bligk,  198.  60. 


1  As  a  matter  of  course,  a  receiver  cannot  make  a  profit  at  the 
expense  of  the  estate  of  which  he  is  the  custodian.  Like  other 
trustees,  he  cannot  bid  at  his  own  sale  ;  Jewett  v.  Miller,  10  N".  York, 
402.  If  he  uses  any  of  the  trust  property,  he  will  be  chargeable  for 
the  rent  or  hire  thereof.     Battaile  v.  Ft  slier,  36  Miss.  321. 


228  LIABILITIES   OF   RECEIVER. 

marked.  If  a  receiver  pays  money  which  comes  into 
his  hands  as  receiver  to  his  private  account  with  a 
hanker,  and  not  to  a  separate  account  as  receiver,  or 
otherwise  mixes  up  the  money  which  he  collects  as 
receiver  with  his  own  money,  he  shall  be  liable  for  the 
loss  if  the  banker  fails.(^)1 

If  a  receiver  puts  a  fund  out  of  his  own  control  so 
that  other  persons  shall  be  able  to  deal  with  it,  he 
guarantees  the  solvency  of  those  persons  and  becomes 
answerable  for  any  loss  that  may  ensue.  It  is  imma- 
terial that  he  may  not  have  so  far  parted  with  the 
control  as  to  enable  the  other  person  to  deal  with  it 
without  his  concurrence,  if  he  has  parted  with  his 
exclusive  control,  by  associating  with  himself  the 
authority  of  another  person. (/)  A  receiver  in  whom 
the  court  confides  is  not  entitled  to  mix  up  with  his 
delegated  authority  another  person  who  is  a  total 
stranger  to  the  court.(^)  In  a  case,  accordingly,  where 
the  receiver  in  order  to  obtain  sureties  had  agreed 
that  the  money  to  be  collected  from  the  property  over 
which  he  was  receiver  should  be  handed  over  to  a 
person  who  was  the  partner  of  one  of  the  sureties,  and 
be  deposited  with  bankers  in  the  joint  names  of  the 
sureties,  and  that  all  drafts  upon  the  moneys  so  de- 
posited should  be  written  by  the  aforesaid  partner  and 
be  signed  by  the  receiver,  it  was  held  that  the  receiver 


(<)   W'ni,  v.    Kirton,  11  Yes.        (f)  Sal  way  v.  Salway,  2  R. 
381.  &  M.  219. 

(g)  lb.  219. 

'  Sec  The  Ultca  Tn$.  Co.  v.  Lynch,  11  Paige,  C.  R.  520. 


LIABILITIES   OF   RECEIVER.  229 

was  liable  for  the  loss  occasioned  by  the  failure  of 
the  banking-house  in  which  the  money  had  been  de- 
posited.^) If,  indeed, a  receiver  parts  with  his  control 
over  the  fund,  by  introducing  the  control  of  an  irre- 
sponsible person  who  is  unknown  to  the  court,  it  seems 
that  he  shall  be  answerable  for  what  has  happened  to 
the  fund  which  he  has  so  dealt  with,  not  merely  where 
the  peril  can  be  shown  to  be  the  cause  of  the  loss,  but 
where  he  has  not  conducted  himself  as  a  prudent  per- 
son would  have  done.(«) 

In  a  case  where  a  receiver  had  paid  moneys  to  the 
plaintiff's  solicitor,  with  directions  to  pay  them  into 
court,  which  had  not  been  done,  the  receiver  was  held 
liable  for  the  loss,  there  being  no  sufficient  evidence  to 
show  that  the  receiver  had  authority  from  the  plaintiff 
to  pay  the  moneys  to  the  solicitor.^-) 

If  a  receiver  be  in  default  for  not  passing  his  ac- 
counts and  paying  the  balance  within  the  proper  time, 
or  if,  not  being  in  default,  he  derives  a  benefit  by  the 
acceptance  of  interest  on  the  balances  which  are  from 
time  to  time  in  the  hands  of  the  banker,  he  is  liable 
to  make  good  any  loss  which  may  be  occasioned  by 
the  bankruptcy  of  the  banker,  although  the  moneys 
may  have  been  deposited  to  a  separate  account. (I) 

A  person  who  having  assumed  to  himself  improperly 

(7i)  lb. ;  S.  C.  in  Dom.  Proc.  Wilkinson,  4  Drew.  614  ;  4  D.  & 

nom.  White  v.  Baugh,  2  Bligh,  J.  508. 

181 ;  3  CI.  &  Fin.  44.  (I)  Drever  v.  Maudsley,  8  Jur. 

(*')  lb.  547  ;   13  L.  J.  Ch.  433  ;  3  L.  T. 

(k)  Delfosse  v.  Craivshay,  4  157;  see  Shaw  v.  Rhodes,  2  Euss. 

L.  J.  Ch.  N.  S.  32  ;  see  Dixon  v.  539;  Wilkinson  v.  Bewick,  4  Jur. 

N.  S.  1010. 


230  LIABILITIES   OF   RECEIVER. 

the  character,  neglects  the  duties  of  a  receiver,  whilst 
the  parties  interested  considered  him  to  be  acting  as 
receiver,  makes  himself  responsible  for  any  of  the  pro- 
perty which  is  lost  through  his  neglect.(?n)  If  rents 
be  paid  to  a  solicitor  in  the  cause  in  his  assumed 
character  of  a  receiver,  he  will  be  ordered  to  pay  them 
over  to  the  proper  receiver,  and  can  claim  no  lien  upon 
them  either  by  virtue  of  an  agreement  with  a  party 
to  the  cause  or  for  costs.(??) 

If  the  receiver  has  paid  moneys  to  the  wrong  per- 
son, and  is  afterwards  obliged  to  pay  the  amount  into 
court,  and  after  due  application  thereof,  a  surplus  re- 
mains, the  court  will  not  pay  such  surplus  over  to  the 
person  to  whom  the  former  payment  was  wrongfully 
made  without  satisfying  the  receiver's  demands.(o)  If, 
however,  the  wrongful  payment  be  made  by  the  re- 
ceiver's assent,  the  receiver  cannot  have  the  benefit  of 
such  payment  against  the  surplus,  except  subject  to 
the  liabilities  of  the  agent  to  the  person  to  whom  the 
wrongful  payment  was  made,  and  the  accounts  cannot 
be  opened  between  those  parties  on  petition  of  the 
executor  of  the  receiver  praying  for  repayment  from 
the  person  wrongfully  paid,  or  on  default  from  the 
rents  of  the  estate.(p) 

A  receiver  appointed  by  a  Colonial  Court  is  liable  to 
be  sued  by  the  person  to  whom  the  produce  of  the 
estate  has  been  directed   to  be  paid  for  an  account  of 


Wood  v.  Wood,4  Kuss.  {<>)     Gurden   v.  Babcock,  6 

558.  Beav.  L62. 

Wickeru  v.  Townsend,  1  (p)  [b.  157. 
H.&  M.  361. 


LIABILITIES   OF    RECEIVER.  231 

such  produce ;  and  the  consignees  of  the  produce  to 
whom  express  directions  have  been  given  for  its  ap- 
plication are  liable  to  be  sued  on  the  allegation  that 
they  are  colluding  with  the  receiver  for  the  purpose 
of  satisfying  the  claim  against  him  out  of  moneys  in 
their  hands  received  from  the  estate  and  due  to  the 
plaintiff.^) 

Upon  motion  on  behalf  of  a  late  ward  of  court, 
charging  that  the  accounts  formerly  passed  were  such 
as  should  not  bind  the  applicant,  and  stating  errors 
and  neglect,  the  receiver  was  ordered  to  account  again 
from  the  beginning.(r) 

Liabilities  of  Heeeiver  to  Third  Parties  for  Misconduct 
in  the  Exercise  of  his  Duties.1— Although  the  court  will 


(q)  Fitzgerald  v.  Stewart,  2         (r)   Wildridge  v.  McKane,  2 
Sim.  333.  Moll.  545. 


1  The  subject  of  the  liability  of  a  receiver  to  third  parties  for  in- 
juries resulting  from  negligence  in  the  discharge  of  his  duties,  was 
examined  in  Camp  v.  Barney,  4  Hun,  373,  and  the  opinion  of  E.  D. 
Smith,  J.,  contains  such  a  clear  statement  of  the  law  and  a  full  re- 
view of  the  authorities,  that  it  is  here  given  in  extenso.  The  action 
was  brought  to  recover  damages  for  personal  injuries  received  by  the 
plaintiff  while  she  was  travelling  from  the  town  of  Brockton,  N.  Y., 
to  Corry,  Penna.,  upon  a  railroad  operated  by  the  defendant  as  special 
receiver.  The  court  said  :  "  By  the  order  appointing  the  defendant 
receiver,  he  was  vested  with  all  and  singular  the  estate,  franchises, 
property,  and  effects,  of  every  name  and  nature  and  description,  be- 
longing to  the  Buffalo,  Corry,  and  Pittsburg  Railroad  Company;  and 
he  was  authorized  to  employ  such  assistants,  operatives,  mechanics, 
laborers,  and  firemen,  as  he  might  deem  necessary  ;  to  purchase  sup- 
plies ;  to  borrow  or  hire  such  rolling  stock,  and  make  such  running 
arrangements  into  connecting  lines  as  he  should  deem  necessary  ;  and 
to  operate  the  railroad  of  said  company  from  Brockton  to  Corry  ;  and 


232  LIABILITIES   OF   KECEIVER. 

not  allow  the  possession  of  its  receiver  to  be  disturbed 
without  leave,(s)  the  court  in  its  discretion  will,  if  the 

(s)  Supra,  p.  177. 

that  he  have  all  the  usual  powers  of  receivers  in  like  cases,  as  pro- 
vided by  the  rules  and  practice  of  said  court.  At  the  close  of  the 
evidence  iu  the  case,  the  counsel  for  the  defendant  requested  the 
court  to  decide,  that  inasmuch  as  the  defendant  was  operating  said 
railway  as  receiver  only,  and  pursuant  to  the  order  aforesaid,  he 
could  not  be  made  personally  liable  in  this  action  for  the  injuries 
received  by  the  plaintiff.  The  court  then  charged  the  jury  that  the 
defendant  should  be  held  in  this  action,  to  the  ordinary  liability  of  a 
common  carrier  of  passengers  by  railroad,  and  also  that  the  defend- 
ant was  to  be  treated  in  this  action  as  if  the  defendant  at  the  time 
of  the  injury  had  been  carrying  on  said  railroad  for  his  own  personal 
benefit  and  advantage.  To  both  these  propositions,  the  defendant's 
counsel  duly  excepted.  These  exceptions  all  present  substantially 
the  single  point,  whether  the  defendant,  being  in  fact  a  receiver  of 
said  railroad,  can  be  held  personally  liable  to  the  plaintiff  for  the  in- 
jury for  which  this  action  was  brought.  No  reasonable  doubt  I  think 
can  exist,  if  the  action  had  been  brought  against  the  defendant  as 
receiver  by  leave  of  the  court  appointing  the  defendant  such  receiver, 
that  the  action  could  be  maintained.  This  point  was  distinctly  de- 
cided by  the  Supreme  Court  of  Ohio  in  the  case  of  Mears,  Adminis- 
trator,v.  HolbrooTc  et  ah,  Receivers,  ^-c, of  the  Columbus  P.  and  I.  R. 
R.  Co.  (20  Ohio  St.  137).  It  was  there  held  that  the  receivers  were 
the  governing  power,  operating  said  railroad,  and  the  only  persons 
having  authority  to  employ,  direct,  control,  and  dismiss  the  various 
agents  employed  by  them  to  operate  said  railroad,  and  that  the  various 
employees  of  tlie  said  receivers  were  their  servants  and  agents,  and 
they  were  responsible  for  injuries  resulting  from  their  negligence  iu 
tin:  discharge  of  their  duties  assigned  to  them  respectively. 

"  The  ruling  at  the  Circuit  was  doubtless  made  upon  the  ground 
thai  the  defendant  being  thus  the  acting,  directing,  and  governing 
power  in  operating  said  railroad,  and  the  only  tangible  principal 
known  to  the  pnblic,  the  plain  till'  had  a  right  to  hold  him  responsible 
for  the  discharge  of  the  duty  of  the  common  carrier  in  respect  to  her, 
as  assumed  when  he  received  her  money  in  payment  lor  her  safe 
transportation  over  said  railroad,  and  that  the  contract  was  formally 


LIABILITIES    OF   RECEIVER.  233 

misconduct  of  a  receiver  in  the  performance  of  his 
duty  becomes  the  subject  of  proceedings  in  another 

and  nominally  with  him  personally.     This  view  of  the  defendant's 
liability  is  held  in  several  cases  in  the  Supreme  Court  of  Vermont. 

"  In  the  case  of  Bhimenthal  v.  Brainerd  et  al.  (38  Vt.  407),  the 
defendants  were  operating  the  Vermont  Central,  and  Vermont  and 
Canada  Railroads,  as  receivers  under  the  appointment  of  the  Court 
of  Chancery  of  that  State,  and  claimed  as  the  defendant  does  in  this 
case,  that  they  were  only  liable  to  account  as  officers  of  that  court. 
The  court  held  that  the  mere  fact  that  the  defendants  were  acting 
as  receivers  under  the  appointment  of  the  Court  of  Chancery,  could 
not  be  recognized  as  a  defence  to  a  suit  at  law  for  a  breach  of  any 
duty  or  obligation  which  was  assumed  by  them  while  acting  as  such 
receivers,  and  referred  to  the  case  of  Sprague  v.  Smith  (29  Vt.  421), 
where  it  was  held  that  trustees  operating  a  railroad  and  exercising 
its  franchises,  were  responsible  for  the  negligence  of  the  operatives 
under  their  control. 

"  The  same  doctrine  in  respect  to  trustees  operating  a  railroad  was 
held  in  Rogers  v.  Wheeler  (43  N.  Y.  602  ;  S.  C,  2  Lans.  486),  and 
in  Ballon  v.  Farnum  (9  Allen,  47).  Executors  and  administrators 
also  are  personally  liable  upon  all  contracts  made  by  them,  after  the 
death  of  the  testator  [Ferrin  v.  Myrick,  41  N.  Y.  315).  Receivers 
stand  in  the  same  general  position  with  other  trustees  having  an  in- 
dependent power  of  control  in  the  affairs  of  business,  and  are  prima- 
rily responsible  for  their  affirmative  acts  and  neglects  and  contracts, 
and  for  the  negligence  of  those  in  their  employ. 

"  The  only  exception  in  favor  of  receivers  or  distinction  between 
them  and  other  trustees,  is,  that  they  are  officers  of  the  court  ap- 
pointing them,  and  are  under  its  control  and  protection.  But  this 
protection  is  only  accorded  to  them  on  their  own  application,  and  is 
granted  or  refused  by  the  court  appointing  them  in  its  discretion, 
depending  upon  the  circumstances  of  each  case,  as  is  held  in  the  case 
of  Blumenthal  v.  Brainerd  [supra)  ;  Story's  Equity,  \  833 ;  and 
Parker  v.  Browning  (8  Paige,  388) ;  Angel  v.  Smith  (9  Vesey, 
336).  The  case  of  Morse  v.  Brainerd  et  al.  (41  Vt.  551)  illustrates 
and  confirms  this  view.  In  that  case  an  action  at  law  was  com- 
menced against  the  defendants  who  were  in  fact  receivers,  for  the 
loss  and  damage  sustained  by  injury  to  a  car  load  of  cattle  trans- 
ported over  the  road  in  charge  of  the  said  defendants  as  such  re- 
ceivers.    That  action  was  restrained  by  injunction  from  the  Court 


234  LIABILITIES   OF   RECEIVER. 

court,  either  itself  take  cognizance  of  the  complaint, 
or  leave  the  matter  to  be  dealt  with  upon  such  pro- 
of Chancery,  and  the  cause  of  action  was  brought  into  that  court 
and  disposed  of  by  a  reference  to  a  master. 

"  This  was  upon  the  assumption  that  it  was  no  defence  at  law,  that 
the  defendants  were  officers  appointed  by  and  acting  under  the 
authority  of  the  Court  of  Chancery.  If  the  receiver  in  such  case 
seeks  the  protection  of  the  court  by  which  he  was  appointed,  he 
must,  in  proper  form,  invoke  such  protection  by  injunction,  and  it 
follows,  I  think,  in  such  a  case,  that  if  the  receiver  does  not  ask  for 
such  protection  from  the  proper  court,  the  action  may  proceed 
against  him  at  law,  and  he  must  be  deemed  to  have  waived,  if  need 
be,  such  ground  of  objection  to  the  action,  as  to  have  voluntarily 
elected  to  defend  the  action  at  law,  to  the  same  effect  as  if  leave  had 
been  given  by  the  proper  court  to  the  institution  of  such  suit  at  law. 
The  Supreme  Court  of  Massachusetts,  recognized  this  principle  in 
Paige  v.  Smith  (99  Mass.  395),  and  held  that  as  the  defendants  were 
liable  to  be  sued  at  law  in  Vermont,  they  must  be  held  so  liable  in 
that  State.  The  action  in  this  case  was  a  proper  one  to  be  tried  at 
law,  and  if  application  had  been  made  to  the  District  Court  to  re- 
strain the  action,  I  should  think  that  court  might  very  properly 
have  refused  such  order,  and  allowed  the  cause  to  proceed  to  trial 
and  judgment  at  law,  and  have  directed  the  receiver  to  defend  the 
same  and  abide  by  the  decision  of  the  court,  and  if  it  were  of  any 
practical  consequence,  I  do  not  see  why  the  record  might  not  now 
be  amended,  and  the  judgment  be  entered  and  affirmed  as  against 
the  receiver  in  form,  to  the  same  effect  as  if  he  had  in  fact  been  sued 
as  receiver."  See  also  Louisville,  8fc.,R.  R.  v.  Cauble,  46  Indiana, 
277  ;  Allen  v.  Central  It.  R.  Co.,  2  Law  &  Eq.  Rep.  202 ;  Kinney  v. 
Crocker,  18  Wis.  74 ;  and  Potter  v.  Bunnell,  20  Ohio  St.  150. 

In  Klein  v.  Jewett,  11  C.  E.  Green,  474,  the  following  language 
was  used  :  "  The  rule  may  be  considered  settled  that  where  an  injury 
results  from  the  fault  or  misconduct  of  a  receiver  appointed  by  a 
Court  of  Equity,  while  acting  under  color  of  the  authority  of  the 
court,  there  being  no  dispute  as  to  the  power  of  the  court  to  make 
the  order  under  which  he  claims  to  have  acted,  the  court  may,  in  its 
discretion,  either  take  cognizance  of  the  question  of  the  receiver's 
liability  and  determine  it,  or  permit  the  aggrieved  party  to  sue  at 
law.  lint  if  the  power  of  the  court  is  disputed,  the  court  then  has 
no  choice;  it  must  assume  exclusive  jurisdiction  and  inhibit  the  ag- 
grieved perSOD  from  seeking  redress  against  the  receiver  in  any  other 


LIABILITIES   OF   RECEIVER.  235 

ceeclings.1  There  is  a  clear  and  well-recognized  dis- 
tinction between  cases  where  the  jurisdiction  of  the 
court,  or  the  validity  and  propriety  of  its  orders  or 
process  is  disputed,  and  cases  where  the  authority  of 
the  court  is  admitted,  but  redress  is  sought  against  its 
officer  for  irregularity  or  excess  in  the  performance  of 
its  orders.  In  the  former  case  the  court  has  no  choice, 
but  must  draw  the  whole  matter  over  to  its  own 
cognizance.  In  the  latter  case  the  court  has  an  indis- 
putable right  to  assume  the  exclusive  jurisdiction  ; 
but  may,  if  it  think  fit,  on  the  circumstances  being 
specially  brought  before  it,  permit  other  courts  to  pro- 
ceed for  punishment  or  redress. (t) 


(t)  Aston  v.  Heron,  2  M.  &  K.  396 ;  see  Chalie  v.  Pickering,  1 
Keen,  749. 

tribunal.  Aston  v.  Heron,  2  Myl.  &  K.  390;  Parker  v.  Browning, 
8  Paige,  388."  In  this  case  the  rule  was  laid  down  that  the  lia- 
bility of  a  receiver  opei'ating  a  railroad  is  the  same  as  that  of  the 
corporation,  citing  Mears  v.  Holbrook  (supra). 

Where  a  plaintiff,  at  whose  instance  a  receiver  was  appointed  to 
take  charge  of  personal  property,  acted  in  good  faith  upon  probable 
cause,  he  was  held  not  liable  for  injuries  done  to  the  property  while 
in  the  hands  of  such  receiver.     Kaiser  v.  Kellar,  21  Iowa,  95. 

1  Parker  v.  Broivning,  8  Paige,  C.  R.  389.  Permission  of  the 
court  is  necessary  to  warrant  an  action  against  a  receiver.  De 
Groot  v.  Jay,  30  Barb.  483.  See,  also,  in  the  Matter  of  Merritt,  5 
Paige,  C.  R.  131 ;  Merritt  v.  Lyon,  16  Wendell,  405 ;  and  the  cases 
cited  in  note,  p.  206,  ante.  See,  further,  as  to  responsibility  of  re- 
ceivers, Commonivealth  v.  Franklin  Ins.  Co.,  115  Mass.  278. 


CHAPTER  IX. 

SALARY  AND  ALLOWANCES  OF  A  RECEIVER. 

A  receiver  will,  unless  it  is  otherwise  ordered,  or 
unless  he  consents  to  act  without  a  salary,  be  allowed 
a  proper  salary,  or  have  allowances  made  to  him  for 
his  care  and  pains  in  the  execution  of  his  duties.(a)1 
The  amount  of  the  salary  or  allowance  is  not  in  general 
fixed  until  the  passing  of  the  first  account,  when  the 
receiver  will  be  allowed  either  a  percentage  upon  his 
receipts,  or  a  gross  sum  by  way  of  salary. (b)2 

(a)  Ord.  XXIV.  1.  (&)  Dan.  Oh.  Pr.  1581. 

1  In  proceedings  in  bankruptcy  a  receiver  is  treated  as  the  agent 
of  the  creditors,  and  the  expenses  of  his  trust  cannot  be  charged 
against  a  mortgagee.  Ex  parte  Warren  (In  re  Joyce),  L.  R.,  10 
Ch.  A  pp.  222. 

1  The  subject  of  the  compensation  of  trustees,  executors,  and 
other  persons  standing  in  a  fiduciary  capacity,  is  treated  at  length  in 
the  American  note  to  Robinson  v.  Pelt,  2  Leading  Cases  in  Equity, 
208.  The  amount  of  compensation  is,  in  many  of  the  United  States, 
prescribed  by  statute  ;  in  others  it  is  established  by  judicial  decision. 
See,  in  this  connection,  Gardiner  v.  Tyler,  40  N.  York,  508.  As 
a  general  rule,  it  may  be  Baid  that  the  allowance  to  receivers  is 
hum  mill  liv  tin-  same  standard  as  that  by  which  the  compensation 
of  other  fiduciaries  is  regulated.  Sec,  however,  Gardiner  v.  Tyler, 
2  A 1. 1..  A  pp.  Dec.  2  17. 

In  Niw  STork,  prior  to  the  Revised  Statutes,  the  usual  allowance 
to  receive)  was  5  per  cent,  on  amounts  received  and  paid  out — i.  e., 
2  |  per  cent,  on  receipts  and  2i  on  disbursements,  in  the  Matter  of 
The  /-'"></.•  of  Niagara,  *',  Paige,  <\  R.  216-218.  Bj  the  Revised 
.Statutes  the  allowance   to  receivers  of  insolvent  corporations  was 


SALARY    AND    ALLOWANCES   OF   RECEIVER.  237 

Under  very  special  circumstances  an  order  has  been 
made  that  the  receiver  should  be  allowed  such  salary 
as  the  judge  might  on  passing  each  account  think 
reasonable.(t*) 

The  allowance  to  a  receiver  of  the  rents  and  profits 
of  a  landed  estate  is  generally  £5  per  cent,  on  the 
gross  amount  received.  This  allowance  may,  however, 
be  increased  if  there  is  any  special  difficulty  in  the 
collection  ;  or  diminished,  or  a  fixed  salary  allowed, 

(c)  Neave  v.  Douglas,  .26  L.  J.  Ch.  756. 

fixed  at  a  rate  not  higher  than  that  allowed  to  executors  and  admin- 
istrators. (And  see  Midler  v.  Pondir,  6  Lans.  472).  This  had 
been  determined  (by  Chancellor  Kent,  in  the  Matter  of  Roberts,  3 
John.  0.  R.  43)  to  be  5  per  cent,  on  the  first  $1000,  2£  per  cent,  on 
the  next  $4000,  and  1  per  cent,  on  amounts  over  $5000.  This  is  a 
general  rule  which  applies  to  receivers,  executors,  guardians,  trus- 
tees, and  all  others  who  receive  and  pay  out  trust  funds.  The 
method  of  calculating  the  allowance  is  explained  at  length  by 
Chancellor  Walworth  in  the  Matter  of  Kellogg,  7  Paige,  C.  R.  266  ; 
and  see  Van  Buren  v.  The  Ins.  Co.,  12  Barb.  671. 

In  South  Carolina  the  usual  allowance  to  receivers  is  5  per  cent, 
on  amounts  received  and  disbursed.  Price  v.  White,  1  Bailey,  C.  R. 
240.  In  Massachusetts,  the  compensation  of  receivers  is  limited  to 
"  such  an  amount  as  would  be  reasonable  for  the  servises  required 
of  and  rendered  by  a  person  of  ordinary  ability  and  competent  for 
such  duties  and  services,  and  should  not  be  based  upon  the  usages 
and  rates  of  profit  which  prevail  in  any  branch  of  commercial  or 
other  business,  nor  upon  the  special  qualifications  or  standing  of  the 
person  who  may  happen  to  perform  the  service."  Grant  v.  Bryant, 
101  Mass.  569-570. 

The  compensation  of  a  receiver  is  not  always  graduated  by  a  per- 
centage on  the  amounts  received  by  him,  but  somewhat  by  the  duties 
and  somewhat  by  the  responsibilities  of  the  situation.  See  Cowdry 
v.  The  Galveston  Railroad,  1  Woods  C.  C.  331.  In  this  case  the 
receiver  was  allowed  $10,000  per  annum  in  coin.  See  further  on 
this  subject  Jones  v.  Keen,  115  Mass.  170  ;  Hutchinson  v.  Hampton, 
1  Mon.  T.  39. 


238  SALARY    AND    ALLOWANCES    OF   RECEIVER. 

where  the  rental  is  considerable.^)  The  subject  of 
the  proper  amount  to  be  allowed  to  a  receiver  was 
considered  in  Day  v.  Croft.{e)  Lord  Langdale,  having 
inquired  of  the  Masters  what  were  the  principles  on 
which  they  acted  and  the  practice  adopted  on  this 
point  in  their  several  offices,  thus  states  the  result  of 
his  inquiries  :  "  The  Masters  have  each  of  them  been 
good  enough  to  furnish  me  with  a  certificate  ;  and  I 
find  that  there  is  no  general  rule  which  universally 
prevails  as  to  the  allowance  to  a  receiver.  "Where  the 
receipts  consist  of  freehold  and  leasehold  estates,  £5 
per  cent,  on  the  amount  received  is  most  frequently 
allowed.  If  there  be  any  special  difficulty  in  collect- 
ing the  rents,  on  account  of  the  sums  being  extremely 
small,  or  of  the  payments  being  frequent,  as  weekly 
payments,  then  the  allowance  is  increased.  On  the 
other  hand,  if  there  should  be  very  great  facility  in 
receiving  the  rents,  then  less  than  £5  per  cent,  is 
allowed.  One  of  the  Masters  has  certified  to  me  a 
case  where,  after  consideration,  he  allowed  only  £4 
per  cent,  on  the  receipt  of  rents  and  profits  of  freehold 
and  leasehold  estates.  Another  Master  has  certified 
to  me  a  case  in  which  the  sum  paid  to  the  receiver 
amounted  to  £300  for  the  first  year ;  the  receiver  was 
afterwards  allowed  £150  only  for  a  succession  of  }*cars; 
which  was  afterwards  reduced  to  £50  a  year  for  the 
receipt  of  the  same  rents.  It  cannot,  therefore,  be 
considered  as  a  universal  or  general  rule  that  £5  per 
cent,    should  bo  allowed    even    upon    the  receipts  of 

id)  Bet.  on  !>.'.■!•.   L006 ;  Dan.       (<•)  2  Beav.  491. 
Ch.  Pr.  L581. 


SALARY   AND   ALLOWANCES   OF   RECEIVER.  239 

rents  and  profits.  It  may  be  increased  if  there  be  any 
extraordinary  difficulty,  or  diminished  if  there  be  any 
extraordinary  facility  in  the  collection.  "With  respect 
to  other  receipts,  each  Master  considers  himself  bound 
to  have  regard  to  the  degree  of  facility  or  difficulty 
there  may  be  in  receiving  them.  They  have  some- 
times allowed  £2|  per  cent.,  but  for  gross  sums  of 
money  this  has  been  very  much  reduced,  and  £1|  per 
cent,  has  been  allowed  on  many  occasions.  It  appears, 
therefore,  that  the  Masters,  as  they  ought,  consider 
upon  each  occasion  what  is  fit,  or  proper  to  be  allowed, 
having  regard  to  the  degree  of  difficulty  or  facility 
experienced  by  the  receiver."  In  the  case  in  which 
these  observations  were  made,  an  objection  was  taken 
to  an  allowance  which  had  been  made  to  the  receiver 
of  £5  per  cent,  on  certain  large  sums  of  money  which 
had  been  paid  to  him  for  redemption  of  annuities,  for 
interest  upon  mortgages  and  annuities,  and  it  appear- 
ing that  the  particular  circumstances  and  the  particu- 
lar nature  of  the  items  had  not  been  brought  to  the 
attention  of  the  Master,  Lord  Langdale  thought  there 
was  sufficient  in  the  case  to  warrant  an  order  to  review 
the  report. 

The  practice  of  the  Master's  office  as  above  stated  is 
generally  followed  in  the  judge's  chambers  in  fixing 
the  salary  or  making  an  allowance  to  a  receiver.(/) 

A  receiver  is  entitled  out  of  the  funds  to  his  costs, 
charges,  and  expenses  properly  incurred  in  the  dis- 
charge of  his    ordinary  duties,  or   in    extraordinary 

(/)  Dan.  Ch.  Pr.  1582. 


240  SALARY    AND    ALLOWANCES   OF   RECEIVER. 

services  which  have  been  sanctioned  by  the  court. (g)1 
In  a  case  where  a  receiver  has  paid  sums  out  of  his 
own  pocket  in  satisfaction  of  legacies,  he  will  be  re- 
imbursed.^) So  also  in  a  suit  to  administer  a  West 
Indian  estate,  a  consignee  appointed  by  the  court,  who 
had  become  in  advance  to  the  estate,  was  held  entitled 
to  repayment  out  of  the  corpus  of  the  estate,  in  priority 
to  the  costs  of  the  suit.(f) 

It.  is  not  necessary  for  a  receiver  to  apply  to  the 
court  for  the  payment  of  his  costs,  charges,  and 
expenses  properly  incurred  in  the  discharge  of  his 
duties.(A-) 

A  receiver,  it  may  be  observed,  has  not  such  a  vested 
right  to  the  collection  of  moneys  payable  in  respect  of 
the  estate  as  will  entitle  him  to  prevent  the  money 
being  paid  into  court  without  passing  through  his 
hands,  where  poundage  may  be  saved  by  a  direct  pay- 
ment into  court.  Lord  Langdale  accordingly  made 
an  order  on  the  petition  of  some  of  the  parties  inter- 
ested, that  a  debtor  who  was  willing  to  pay  the  amount 
of  his  debt  to  the  Accountant-General  at  once,  might 
be  at  liberty  to  do  so.(l) 

(g)  Malcolm  v.  0'  Callaghan,  (k)  Fitzgerald  v.  Fitzgerald, 

3    M.  &    0.    52;    Fitzgerald  v.  4  Ir.  Eq.  525. 

Fitzgerald,  5  Ir.  Eq.  525  (I)  Haigh  v.Grattan,  1  Bcav. 

(/i)    Palmer    v.     Wright,    10  201  ;    Weale  v.    Ireland,  5  Jur. 

I'<;i v.  230.  405  ;  sec  as  to  the  practice  in  lu- 

(t)  Morison  v.  Mori&on,  7  P.  nacy,  Ex  parte  Clayton,  1  Ross. 

M.  &  G.  215.  47(5;   Ex  parte    Cranmer,    lb. 

477,  n. 


1  Sec  Adams  v.  Woods,  L5  California,  206 ;  Devendorf  v.  Dickin- 

son.  21  How.  Pr.  It.  275;  ///  re  Gomersall,  I>.  II.  20  Eq. 29]  ;  ante, 
notes  to  20G-7. 


SALARY   AND   ALLOWANCES   OF   RECEIVER.  241 

A  receiver  may  be  entitled  to  allowances  beyond  his 
salary  for  an  extraordinary  trouble  or  expense  he 
may  have  been  put  to  in  the  performance  of  his 
duties,(v/i)  or  in  bringing  actions,  or  defending  legal 
proceedings  which  have  been  brought  against  him.(n) 
Where,  for  example,  an  adverse  application  had  been 
made  against  a  receiver  by  a  party  to  the  cause,  which 
was  refused  with  costs,  the  applicant  being  wholly 
unable  to  pay  those  costs,  it  was  held  that  the  re- 
ceiver was  entitled  to  be  indemnified,  and  have  his 
costs  as  between  solicitor  and  client  out  of  the  fund 
in   hand,  although  it  belonged  to  iucumbrancers.(o)1 


(m)  Potts  v.  Leighton,  15  Ves.  wait  to  apply  for  leave  to  defend 

276.  an  action   till  just  before  trial. 

(n)  Re  Montgomery,  1  Moll.  Anon.,  6  Ves.  286. 

419;    Bristotve   v.  Needham,  2  (o)    Courand   v.  Hanmer,  9 

Ph.  190  ;  Courand  v.  Hanmer,  9  Beav.  3  ;  see  Att.-Gen.  v.  Lewis, 

Beav.  3.    The  receiver  should  not  8  Beav.  179. 


1  A  receiver  who  acts  as  his  own  counsel  is  not  entitled  to  make 
an  extra  charge  for  such  services.  Where,  however,  he  employs 
counsel  under  proper  circumstances,  he  will  be  allowed  for  their 
payment.  In  the  Matter  of  the  Bank  of  Niagara,  6  Paige,  C.  R. 
213.  See  also  Battaile  v.  Fisher,  36  Miss.  321 ;  The  Utica  Insur- 
ance Co.  v.  Lynch,  2  Barb.  C.  R.  573 ;  Ryckman  v.  Parkins,  5 
Paige,  C.  R.  545 ;  and  Adams  v.  Haskell,  6  Cal.  475.  A  receiver 
should  not  retain  as  his  solicitor  the  counsel  for  a  party  to  the  suit. 
Adams  v.  Woods,  8  Cal.  319  ;  RyckmanY.  Parkins,  5  Paige,  C.  R. 
543  ;  Ainsley's  Petition,  1  Edw.  C.  R.  576  ;  Ray  v.  Macomb,  2  Id. 
165  ;  Branch  v.  Sheffield,  49  How.  Pr.  R.  196.  But  the  receiver 
may  do  so  if  the  parties  have  no  objection,  and  a  stranger  is  not  en- 
titled to  object.  Warren  v.  Sprague,  11  Paige,  C.  R.  200  ;  4  Edw. 
C.  R.  416 ;  and  see  Smith  v.  The  New  York  Stage  Co.,  18  Abb. 
Pr.  R.  420.  A  receiver  may  be  allowed  his  expenses  and  his  counsel 
and  witness  fees  in  defending  himself  against  a  motion  for  his  removal. 
Cowdrey  v.  The  Galveston  Railroad  Co.,  1  Woods,  338.  See  this 
16 


242  SALARY   AND   ALLOWANCES   OF   RECEIVER. 

So  also  where  a  receiver  defended  an  action  of  law, 
and  the  defence  was  completely  successful,  the  extra 
expenses  were  allowed,  although  the  receiver  had 
acted  without  the  leave  of  the  court.(^) 

But  if  any  extraordinary  expenses  have  been  in- 
curred by  the  receiver,  allowances  for  them  will  not 
be  in  general  sanctioned,  unless  they  have  been  in- 
curred with  the  approbation  of  the.court  or  judge,(g)  or 
unless  the  estate  has  been  benefited  thereby. (r)  Where 
accordingly  a  receiver  without  the  leave  of  the  court 
defended  an  action  arising  out  of  a  distress  for  rent 
made  by  him,  and  compromised  it  on  the  terms  of  the 
plaintiff  abandoning  it,  and  each  party  bearing  his 
own  costs,  he  was  disallowed  his  costs.(s)  So  also 
where  the  receiver  of  a  lunatic's  estate  instituted  pro- 
ceedings in  a  wrong  form  of  action,  which  he  aban- 
doned, and  then  adopted  a  form  in  which  he  succeeded, 
he  was  refused  the  costs  of  the  abandoned  proceed- 
ings, although  the  master  reported  that  he  had  acted 
bondfide.fy) 

The  receiver  is  not  entitled  to  be  reimbursed  the 
expenses  of  journeys  to  and  residence  in  a  foreign 
country  for  the  purpose  of  prosecuting  proceedings  for 

(p)   Bristowe  v.  Ncedham,  2  Ph.  190;    Malcolm  v.    O'Calla- 

Ph.  190  ;  see  Malcolm  v.  O'Cal-  ghan,  3  M.  &  0.  58. 

laghan,  3  M.  &  C.  58.  (s)  Swaby  v.  Dickon,  5  Sim. 

{q)  lie  Onnsby,  1    Ba.  &  Be.  C29. 

189.  (t)   lie  Montgomery,  1  Mol. 

(r)   Dristotvc   v.   Ncedham,  2  419. 

case,  also,  as  to  the  outlays  which  are  within  the  discretion  of  a  re- 
ceiver of  a  railroad.  Dpon  the  general  subject  of  allowances  to 
receivers,  bcc  Corey  v.  Long,  12  Abb.  1'r.  It.  (N.  S.)  427. 


SALARY   AND   ALLOWANCES   OF   RECEIVER.  243 

the  recovery  of  property  belonging  to  the  estate  before 
the  tribunals  of  that  country,  unless  he  has  the  ex- 
press sanction  and  authority  of  the  court  for  such 
journeys  and  residence.(w)  If,  however,  the  result  of 
the  suit  be  successful,  and  it  appear  that  the  success 
has  been  due  to  or  has  arisen  from  the  presence  of  the 
receiver,  it  may  be  in  the  opinion  of  the  court  inequi- 
table for  the  parties  to  take  the  benefit  of  the  exer- 
tions of  the  receiver  without  defraying  the  expenses 
which  had  attended  them,  although  no  previous  au- 
thority for  incurring  them  had  been  given. (x)  The 
fact  that  some  of  the  parties  interested  may  have 
given  him  authority,  furnishes  no  ground  for  the  court 
to  allow  his  expenses  out  of  the  estate.(?/) 

If  the  property  in  dispute  is  small,  the  court  may 
appoint  a  receiver  without  a  percentage. (z) 

If  a  trustee,(a)  or  party  interested,  ask  leave  to  pro- 
pose himself  as  receiver,  he  will  be  usually  required 
to  act  without  salary,  unless  by  consent.(6)  In  a  case, 
however,  where  a  testator  had  appointed  as  trustee 
and  executor  a  person  who  for  many  years  had  been 
the  paid  receiver  and  manager  of  his  estate,  the  court 
appointed  him  as  receiver  at  a  salary,  the  tenant  for 
life  being  an  infant.(c) 

Where  a  receiver  is  served  with  a  petition  in  the 
cause,  he  should  not  appear,  and  will  get  no  costs  of 

(u)  Malcolm  v.  O'Callaghan,  (a)  SyJces  v.  Hastings,  11  Ves. 

3  M.  &  0.  52.  363;  supra,  p.  137. 

(x)  lb.  58.  (6)  Set  on  Deer.  1007  ;  supra, 

{y)  lb.  61.  pp.  136-137. 

(z)  Marr  v.  Littlewood,  2  M.  (c)  Neivport  v.  Bury,  23  Beav. 

&  C.  458.  30. 


244  SALARY   AND   ALLOWANCES   OF   RECEIVER. 

appearance  if  he  does  ao.(d)  But  where  the  receiver 
had  incurred  costs  which  the  parties  had  long  neg- 
lected to  provide  for,  he  was  allowed  to  petition  for 
the  payment.(e) 

If  a  receiver  suffer  any  costs  to  accrue  which  ought 
to  have  been  prevented,  he  will  have  to  pay  them  out 
of  his  own  pocket.(/) 

The  costs  of  drawing  out  a  scheme  of  the  estate 
and  of  the  holdings  of  the  tenants  are  chargeable,  if 
at  all,  as  part  of  the  receiver's  costs,  and  not  of  the 
solicitor's ;  but  it  seems  that  no  allowance  would  be 
made  to  the  receiver  for  such  an  item  where  he  is  paid 
by  a  percentage,  though  it  may  be  necessary  for  the 
due  performance  of  his  duties. (7) 

If  the  exertions  of  a  receiver  have  been  successful 
in  creating  a  benefit  to  the  estate,  allowance  will  be 
made  to  him  for  the  costs  to  which  lie  has  been  put,(/i) 
but  no  costs  will  be  allowed  of  a  defence  improperly 
made,(j)  or  of  a  proceeding  improperly  taken  and 
abandoned,  though  the  receiver  acted  bond  fide  and 
succeeded  in  a  subsequent  proceeding.^)  In  a  case 
where  the  receiver  of  a  lunatic's  estate  had  instituted 
proceedings  which,  being  wrong  in  form,  he  abandoned, 
and   afterwardfl   took   proper  proceedings  which  were 

{,!)   Rermon   v.   Dunbar,  23  (g)  Re  Catlin,  18  Beav.  511. 

Beav.  312.  (A)  Bristowe  \.  Needham,  2 

/  etandv.  Eade,1  Beav.  Ph.  L90;  supra,  p.  216. 

55;  supra, p.  222.  (i)  Swaby  v.  Dickon,  5  Sim. 

(/)    Cook   v.  Shanmin,  S   Ir.  C81  ;  supra,  p.  210. 

Eq. 515,    Bee  06  I-  co  U  which  [k)  He  Montgomery,  1   Moll. 

will  1  >r  will  noi  be  allowed  to  a  i  1  'J. 
r<  ■  eiver  in   Ireland,  Sadleir   v. 
Qreene,  2  Ir.  Ch.  330. 


SALARY   AND   ALLOWANCES  OF   RECEIVER.  245 

successful  for  the  estate,  the  court  refused  to  allow 
him  the  costs  of  the  abandoned  proceedings,  although 
the  master  reported  that  the  receiver  had  acted  bond 
fide  and  ought  to  be  allowed  the  costs.(7) 

"Where  an  application  by  a  defendant  against  a 
receiver  was  refused  with  costs,  and  the  defendant  was 
unable  to  pay  the  costs,  the  receiver  was  held  to  be 
entitled  to  deduct  his  costs  as  between  solicitor  and 
client  from  the  balance  in  his  hands.(m) 

If  a  receiver,  without  the  leave  of  the  court,  pay 
out  moneys  to  a  judgment  creditor  of  the  party,  over 
whose  estate  he  has  been  appointed  receiver  under  an 
order  of  a  Court  of  Common  Law,  he  will  not  be 
allowed  the  same  in  his  accounts,  if  the  moneys  are 
not  repaid  by  the  judgment-creditor.  He  will  also, 
along  with  the  judgment-creditor,  have  to  pay  the 
costs  of  the  motion.(n) 

A  receiver  may,  on  its  being  ascertained  to  be  for 
the  benefit  of  the  estate,  be  entitled  to  an  allowance 
for  money  laid  out  on  the  estate  without  previous 
order.(o) 

In  a  case  where  the  receiver's  default  in  bringing  in 
his  accounts  on  the  appointed  days  was  known  to  the 
parties,  and  the  accounts  had  been  passed  and  pound- 
age allowed  without  objection,  no  loss  having  been 
sustained  by  the  receiver's  fault,  and  no  balance  being 
due  from  him,  the  court  would  not  afterwards  listen 

(l)  lb.  (n)  Be  Wintonv.Mayor,fyc. 

(m)   Courand  v.    Hanmer,  9     of  Brecon,  28  Beav.  204. 
Beav.  3.  [o)  Supra,  p.  217. 


246  SALARY   AND   ALLOWANCES   OF  RECEIVER. 

to  an  application  to  strike  out  his  allowance  of  pound- 
age and  cost  at  the  instance  of  parties  who  had  the 
benefit  of  his  services  ;(p)  but  the  amount  of  the 
allowance  made  to  a  receiver  may  be  reconsidered, 
where,  though  an  objection  was  originally  made,  the 
particular  circumstances  of  the  case  and  the  nature  of 
the  items  were  not  taken  into  consideration. (q) 

Receiver  may  not  make  Interest  on  Balances  in  hand.— 
A  receiver,  though  he  passes  his  accounts  and  pays 
his  balances  regularly,  is  not  entitled  to  make  interest 
for  his  own  benefit  of  moneys  which  come  into  his 
hands  in  his  character  of  receiver,  during  the  intervals 
between  the  times  of  passing  his  accounts. (r) 

Life  Estate  subject  to  Expenses  of  Receiver.— If  it  is 
necessary,  from  the  condition  of  the  estate,  not  from 
the  conduct  of  the  parties,  to  have  a  receiver  appointed 
over  the  estate  of  a  tenant  for  life  of  real  estate,  it  is 
an  expense  to  which  the  estate  for  life  is  inherently 
subject.  It  is  the  right  of  the  remainderman  to  have 
a  receiver  appointed,  and  to  have  the  ordinary  ex- 
penses of  such  appointment  paid  out  of  the  life- 
estate.^) 


(p)   Ward  v.Svrift,  8  Ba.  139 ;  Church,  3  Bro.  0.  C.  40  ;  infra, 

I. in    ee  infra,  p.  259.  p.  253-254 

(<l)  Vayy.  Croft, 2 Beav. 481.        («)  Shore  v.  Shore,  4  Drew. 

(r)  Shaw  v.   Rhodes,  2  Etuss.  510. 
53(J ;  sec  Earl  of   Lonsdale  v. 


CHAPTER  X. 

ACCOUNTS. 

Delivery  of  Accounts.— Under  the  old  practice  the 
accounts  of  a  receiver  were  required  to  be  delivered 
annually  ;(«)  but  under  the  present  practice  the  judge, 
to  whose  chambers  the  cause  is  attached,  may,  at  his 
discretion,  fix  a  longer  or  shorter  period  for  a  receiver 
to  leave  and  pass  his  accounts.(6)  The  accounts  must 
be  delivered  at  the  judge's  chambers  on  the  days  ap- 
pointed for  the  purpose.(c)1 

Form  of  Accounts.— The  accounts  should  be  made 
out  in  the  prescribed  form.(^)  In  the  first  account  he 
passes,  the  receiver  should  state  in  the  column  for 
observations  how  each  tenant  holds,  and  every  altera- 
tion should  be  noticed  in  the  subsequent  accounts. 

(a)  See  Beames'  Ch.  Orel.  463.  (c)   Blox.   4 ;    Dan.   Ch.    Pr. 

(6)   Ord.   XXIV.  2.     Where  1588. 

the  expenses  of   attending  and  {d)   Reg.   8th   August,   1857, 

passing  a  receiver's  accounts  are  Sched.  No.  14 ;  Blox.  30  ;  Morg. 

large,  the  court  will  direct  the  Ch.  Ord.  App.  74  ;  3  Dan.  Ch.  Pr. 

accounts  to  be  passed    once   a  1752. 
year  only.     Day  v.  Croft,  20  L. 
J.  Ch.  423. 

1  The  receiver,  being  an  officer  of  the  court,  accounts  to  the 
court— not  to  any  party  in  the  cause.  Musgrove  v.  Nash,  3  Edw. 
C.  R.  172.  He  cannot  be  called  upon  to  account  to  any  court  but 
that  -which  appointed  him.     Colliding  v.  Butler,  4  Biss.  22. 


) 


248  ACCOUNTS., 

In  this  column  also  should  be  entered  any  remarks 
the  receiver  may  think  proper  to  make  as  to  the 
arrears  of  rent,  the  state  of  repairs,  or  otherwise.(e) 
If  the  account  is  drawn  up  in  an  irregular  manner, 
the  receiver  may  be  ordered  to  draw  it  up  in  a  proper 
form,  and  to  pay  the  costs  occasioned  by  his  irregu- 
larity.(/)  In  a  case  where  a  receiver  had  been  very 
irregular  in  passing  his  accounts,  which  were  so  pre- 
pared that  neither  the  Master  nor  the  parties  interested 
could  ascertain  what  was  the  real  balance  in  the  re- 
ceiver's hands,  inquiries  were  directed  as  to  the 
amount  of  the  balances  in  his  hands  on  certain  spe- 
cified days  in  preceding  years,  and  as  to  the  sums  due 
to  the  incumbrancers  at  those  times,  and  the  payments 
made  to  them.  And  the  receiver  was  ordered  to  carry- 
in  his  future  accounts  on  or  before  a  fixed  day  in 
every  year,  leaving  at  the  same  time  an  affidavit  set- 
ting forth  the  particulars  of  his  receipts  and  pay- 
ments between  the  day  to  which  the  account  was 
made  up,  and  that  upon  which  it  was  carried  in,  and 
setting  forth  the  true  balance  then  in  his  hands.(^) 

Passing  Accounts.— Upon  leaving  the  accounts,  a 
summons  to  proceed  thereon  is  taken  out  by  the  re- 
ceiver,^)  and    served    upon    the   solicitors    of  such 

(e)   Blox.  51;    Dan.   Oh.    IV.  (/)  Dan.  Ch.  Pr.  1588. 

1588;   :;  H>.    1752.     If   moneys  (;/)  Bertie  v.  Lord  Abingdon, 

have  been  paid  to  the  receiver  k  Beav.  r>:$. 

under  protest,  he  musl    by  alii-  (h)  Ord.  XXIV.  ?,;  Bee  as  to 

davit  distingui  li  them  from  the  form  ofsummoDS, 3  Dan.  Oh.  Pr. 

rest.     Brownhead   v.  Smith,  I  L753,    On  leaving  tin'  first  ac- 

Jur.  237.  count,  ;i  copy  of  the  order  ap- 


ACCOUNTS.  249 

parties  as  are  entitled  to  attend  the  passing  of  the 
accounts.^')1 

In  the  absence  of  any  directions  made  at  the  hear- 
ing of  the  cause,  the  court  will  not,  on  interlocutory 
application,  make  an  order  to  restrain  parties  entitled 
to  attend  the  passing  of  the  accounts  from  attending, 
though  the  result  would  be  a  very  large  saving  to  the 
estate.  If  no  directions  have  been  given  at  the  hear- 
ing, persons  who  are  interested  are  entitled  to  attend 
the  subsequent  proceedings.  The  court  cannot  order 
that  they  should  attend  at  their  own  expense,  and 
that  it  should  be  unnecessary  to  serve  them.(A-) 

On  the  return  of  the  summons  the  receiver's  solicitor 
attends  with  the  vouchers  like  any  other  accounting 
party,  and  the  account  is  gone  through  before  the 
Chief  Clerk. (I)2    Any  person  who  seeks  to  charge  the 

pointing  the  receiver,  certified  by  (i)  Dan.  Ch.  Pr.  1588;  Smith, 

the  solicitor  to  be    a  true  copy  Ch.  Pr.  1035. 

thereof,  must  be  lodged  at  cham-  (k)  Day  v.  Croft,  14Beav.  29  ; 

bers,  if  not  previously  done  ;  Dan.  20  L.  J.  Ch.  423. 

Ch.  Pr.  1588  n.;  see  as  to  form  of  (/)  Smith,  Ch.  Pr.  1035  ;  Dan. 

certificate,  3  lb.  1174.  Ch.  Pr.  1143  et  seq. 

1  Mechanics1  Bank  v.  Bank  of  New  Brunswick,  2  Green,  C.  R. 
437. 

2  A  receiver  is  an  officer  of  the  court,  as  -well  as  a  Master,  and 
states  his  own  accounts,  and  submits  them  to  a  Master  for  inspection 
under  the  order  of  the  court ;  the  Master  acting  in  place  of  the  court 
in  a  judicial,  rather  than  a  ministerial  capacity.  Strictly  speaking, 
exceptions  to  his  report  in  such  cases  do  not  properly  lie,  as  they 
do  to  an  account  stated  by  himself,  as  in  the  case  of  executors,  ad- 
ministrators, trustees,  or  partners,  who  are  ordered  to  account  before 
him.  Nevertheless,  if  the  Master  adopt  any  erroneous  principle  in 
allowing  a  receiver's  account,  the  court  on  petition  of  the  proper 
parties  will  refer  the  matter  back  to  him  for  correction.  Cowdry  v. 
The  Galveston  Railroad  Company,  1  Woods,  334. 


250  ACCOUNTS. 

receiver  beyond  the  amount  of  which  he  has  admitted 
the  receipt,  should  give  him  notice  of  his  intention, 
stating,  as  far  as  he  can,  the  amount  sought  to  be 
charged  and  the  particulars  thereof,  in  a  short  and 
succinct  manner.(m) 

The  receiver  brings  in  also  his  bill  of  costs  upon 
passing  the  account.  The  bill  is  then  taxed,  and  the 
amount  included  in  his  disbursements.  On  passing 
his  first  account,  the  receiver's  costs  of  completing  the 
appointment  are  taxed  and  allowed.(?z)  Parties  at- 
tending the  passing  of  a  receiver's  accounts  only  have 
costs  from  the  receiver  after  a  decree  disposing  of  the 
costs  of  the  suit  and  showing  who  is  intitled  to  costs 
out  of  the  rents ;  in  other  cases  the  costs  of  the  parties 
are  costs  in  the  cause.(o)  Where  the  parties  are  en- 
titled to  have  their  costs  paid  by  the  receiver,  such 
costs  are  taxed  at  chambers  and  paid  by  the  receiver, 
and  included  in  his  account.^) 

If  the  receiver  brings  in  his  account,  but  fails  to 
take  out  a  summons  to  proceed  upon  it,  the  party 
prosecuting  the  order  takes  out  and  serves  on  the 
receiver's  solicitor  a  summons  to  show  cause  why  his 
accounts  have  not  been  passed,  and  to  proceed  to  pass 
the  accounts.  If  the  receiver  does  not  attend,  the 
Chief  Clerk  allows  the  sums  wherewith  the  receiver 


(m)  Ord.  XX  X  V.  34.  (o)  Blox.  52. 

(?/)  Dan.  Ch.  Pr.  1588 ;  Smith,  (p)  Pan.  Oh.  Pr.  1589  ;  see  as 

Oh.  Pr.  1035;  hoc  as  to  scale  of  to  scale  of  such  costs,  Reg.  8th 

costs,    Beg.   8th   August,    1857,  August,   1857,   Belied.   No.   15; 

Bched.  No.  L5;  Blox.  32;  Morg.  Morg.  Ch.  Ord.  App.  70;  Blox. 

Ch.  Ord.  App.  76.  32. 


ACCOUNTS.  251 

has  charged  himself,  and  disallows  such  of  his  pay- 
ments as  he  has  failed  to  vouch.(^) 

The  receiver  is  usually  directed  to  hand  copies  of 
his  accounts  to  such  of  the  parties  as  are  entitled  to 
attend  upon  the  passing  thereof,  and  to  charge  for  the 
same  in  his  costs.(r)  A  plaintiff  or  defendant  entitled 
to  attend  a  receiver's  account  is  not  allowed  in  costs  a 
copy  of  the  account,  if  his  solicitor  is  also  the  solicitor 
for  the  receiver.(s)1 

Allowance  of  Accounts.— When  the  account  is  passed, 
it  is  entered  by  the  solicitor  of  the  receiver  in  a  book 
called  "  the  receiver's  book,"  and  also  in  a  book  which 
is  the  property  of  the  receiver.  The  entry  in  each 
book  must  be  verified  by  the  affidavit  of  the  receiver, 
and  the  affidavit  must  refer  to  the  account  as  an  ex- 
hibit, and  not  be  annexed  to  it.(t)  The  books,  with 
an  office  copy  of  the  affidavit,  are  then  left  at  the 
judge's  chambers,  and  a  memorandum  of  the  allowance 

(q)  Smith,  Ch.  Pr.  1036 ;  Set.  ings.     Dixon   v.    Wilkinson,  4 

on   Deer.   1020 ;  see   Drever  v.  Drew.  619.     [Adams  v.  Woods, 

Maivdedey,  7  Jur.  8.  8  California,  319-320 ;  and  cases 

(r)  Dan.  Ch.  Pr.  1588.  cited  in  note  to  page  241,  ante.] 
(s)  Sharp  v.  Wright,  L.  E.  1         (0   Ord.  XXIV.    3  ;  XXXV. 

Eq.   634.     See    observations    of  33;  Smith,  Ch.  Pr.  1035;  Dan. 

Kindersley,  V.  C,  as  to  the  im-  Ch.  Pr.  1589 ;  see  as  to  form  of 

propriety  of  the   same   solicitor  affidavit,  Reg.   8th   Aug.    1857, 

acting  for  the  receiver  and  the  Sched.  No.  17  ;  Blox.  35 ;  Morg. 

party  conducting    the    proceed-  Ch.  Ord.  App.  78. 

1  Question  as  to  payments  to  proper  parties  and  allowance  of  pro- 
per credits  should  be  raised  on  the  settlement  of  a  receiver's  accounts. 
They  should  not  be  made  the  subject  of  a  subsequent  action.  Olcott 
v.  Heermans,  3  Hun,  431. 


252  ACCOUNTS. 

of  the  account  is  written  at  the  foot  of  it  and  signed 
by  the  Chief  Clerk.(w) 

The  book  called  "  the  receiver's  book"  is  retained 
in  chambers  until  the  completion  of  the  receivership, 
when  it  is  deposited  at  the  Record  and  Writ  Clerk's 
Office.(¥)  The  other  is  delivered  back  from  time  to 
time  to  the  receiver. 

Certificate  of  Allowance.— After  the  allowance  of 
the  account,  a  certificate  of  the  allowance,  stating  the 
balance  due  from  the  receiver,  and  the  days  on  which 
it  is  paid  into  court,(x)  is  then  made  and  signed  D37  the 
Chief  Clerk,  and  approved  and  signed  by  the  judge 
without  delay,  and,  upon  being  so  signed,  is  left  at  the 
Report  Office,  and  forthwith  acted  on.(?/) 

The  rules  concerning  the  time  and  manner  in  which 
the  opinion  of  the  judge  may  be  taken  upon  an}r  pro- 
ceedings as  to  which  the  Chief  Clerk's  certificate  has 
not  been  signed  and  adopted  by  the  judge,  do  not 
apply  to  certificates  upon  passing  receivers'  accounts. 
Such  certificates  may  be  approved  and  signed  by  the 
judge  without  delay,  and,  upon  being  so  signed,  shall 

(h)  Dan.  Ch.  Pr.  L589;  Smith,  fee  of  10*.  in  respect  of  eacli  £100 

Ch.  Pr.  Id:!.");  see  as  to  form  of  of  the  Del  balance  received,  after 

memorandum  of  allowance,  3  Dan.  deducting  all  necessary  outgoings 

Ch.  Pr.  IT."'.").  for  rent,  taxes,  rates, repairs, and 

(v)  Ord.  XXIV.  I.  management    of    the    property. 

3eeOrd.  XXIV.  •_>.  Sch.  to  Consul.  Ord.    I:   Bee  as 

Ord.  XXXV.  46,   IT,  48,  to  the  practice  before  this  order, 

54,65;   Dan.  Oh.  Pr.  L589;  Bee  Wells  v.    Wales,  4   !>.  M.  &  G. 

as  io  form  of  certificate  of  allow-  816  ;  Wastellv.  Leslie,  Lb. 818  a.\ 

ance  3  Dan.  Oh.  Pr.  1754.    The  Buckmaster  v.  Buckmaster,  28 

certificate  bears  a  £1  stamp,  and  L.  J.  Ch.  564 
also  proper  Btamps  lor  the  further 


ACCOUNTS.  .  253 

be  filed  and  forthwith  acted  upon.(>)  This  provision 
follows  the  old  practice  under  which  the  Master's 
report  of  the  receiver's  account  required  no  confirma- 
tion,(a)  and  therefore  did  not  admit  of  exceptions.1 
Hence  the  court  would  not  enter  into  the  consideration 
of  any  of  the  items  of  the  account,  but  would,  upon 
the  petition  of  the  party  complaining,  examine  any 
principle  upon  which  the  Master  had  proceeded  when 
error  was  imputed  to  him. (b) 

Receiver  must  pay  in  Moneys.— Where  the  certificate 
directs  a  payment  to  be  made  into  court,  the  solicitor 
for  the  receiver  should  obtain  an  office  copy  of  the 
certificate,  and  leave  it  at  the  Accountant-General's 
office,  together  with  the  order  directing  the  payment 
of  the  receiver's  balances  into  the  Bank,  and  obtain  a 
direction  for  such  payment.  The  amount  is  paid  on 
such  direction  in  the  usual  manner.(c) 

Although  a  receiver  is  only  bound  by  his  recogni- 
zances to  pass  his  accounts  at  the  periods  appointed  by 
the  judge,  he  may  at  any  time  apply  to  the  court  to 
pay  in  moneys  in  his  hands ;  and  if  in  the  intervals 
between  passing  his  accounts  he  receives  sums  of  such 

(z)  Ord.  XXXY.  54.  in  a  receiver's  accounts,  though 

(a)   2  P.  W.  729 ;  Shewell  v.  an    erroneous   principle    be    not 

Jones,  2  Sim.  &  St.  170;  3  Russ.  adopted  ;■  Beytagh    v.    Concan- 

522.  non,  10  Ir.  Eq.  351. 

(6)  Shewell  v.  Jones,  lb.     In  (c)  Dan.  Ch.  Pr.  1589;  Smith, 

Ireland     objections     are     enter-  Ch.  Pr.  1037. 

tained  to  the  amount  of  the  items 

1  This  practice  was  adopted  in  Brower  v.  Brower,  2  Edw.  C.  R.  621. 


254  ACCOUNTS. 

an  amount  as  to  make  it  worth  while  to  lay  them  out, 
he  ought  to  apply  by  summons  for  an  order  to  pay 
them  into  court,  that  they  may  be  productive  for  the 
benefit  of  the  estate.(^)  If  the  receiver  keep  in  his 
hands  moneys  which  he  was  directed  to  pay  in,  it  is 
no  excuse  for  him  to  say  that  the  circumstances  of  the 
estate  made  it  necessary  to  keep  large  sums  in  hand, 
nor  will  it  prevent  the  court  from  directing  an  inquiry 
as  to  what  sums  might  or  ought  to  have  been  reason- 
ably laid  out  at  interest.(e)  Where  the  order  for  ap- 
pointing a  receiver  does  not  provide  for  the  payment 
of  his  balances  into  the  bank,  the  receiver  will  not  be 
allowed  to  avail  himself  of  the  omission  and  to  keep  a 
balance  in  his  hands  without  interest,  under  a  pretence 
of  waiting  for  some  party  in  the  cause  to  obtain  an 
order  upon  him  for  payment.(/)  He  ought  to  apply 
by  summons,  which  should  be  served  on  the  parties  to 
the  cause,  for  an  order  for  that  purpose,  and  that  the 
costs  be  allowed  him  in  his  next  account;  and  unless 
he  does  so,  the  court  will  charge  him  with  interest.(y) 

Order  at  Suit  of  Parties  interested  that  Receiver  pass 
his  Accounts  or  pay  in  the  Balance.— If  a  receiver  makes 
default  in  leaving  or  passing  his  accounts,  or  in  paying 
in  the  balance  found  due  from  him  at  the  appointed 
time,  any  party  interested  in  the  accounts  may  apply 

[d)  Shdw  v.  Rhodes,  2  Bass.  (/)  Potta  v.  Leighton,  L5  Yes. 

in  form  of  sum  in*  uis,  'JTm,  274  ;  Bee  l  Ba.  &  Be.  -'■'<"■ 

3  Dan.  Ch   IV.  L758.  {g)  Dan.  Oh.  Pr.  L590.    Bee  as 

(c)  Hickt  v.    i/fl.s,   :!   Aik.  to  form  of  the  summons,  3  Dun. 

271.  Oh.  Pr!  it;. u. 


ACCOUNTS.  255 

by  summons  that  he  may  leave  his  account  or  pay  in 
the  balances  within  a  limited  time  (usually  four  days) 
after  service  upon  him  of  the  order  to  be  made  on  the 
summons,  and  pay  the  costs  of  the  application.(A)  The 
summons  must  be  served  on  the  receiver,  and  if  he 
does  not  appear,  the  order  will  be  made,  on  production 
of  an  affidavit  of  the  service  of  the  summons ;  or  where 
the  default  consists  in  not  making  a  payment  into 
court,  of  the  order  and  certificate  under  which  such 
payment  is  to  be  made ;  and  the  Accountant-General's 
certificate  of  such  default  must  be  produced  in  support 
of  the  application.^)  The  order  is  drawn  up  by  the 
registrar,  and  an  indorsed  copy  must  be  served  person- 
ally on  the  receiver  -,(k)  or,  if  personal  service  of  the 
order  cannot  be  effected,  an  order  giving  leave  to  sub- 
stitute service  should  be  obtained  at  chambers  on  an 
ex  parte  application  by  summons,  supported  by  affi- 
davit, and  the  order  must  be  served  in  conformity 
with  the  directions  thereby  given.(^)  If  after  such 
original  or  substituted  service  the  receiver  neglect  to 
obey  the  order,  it  may  be  enforced  against  him  by 
process  of  contempt.(m)     A  similar  course  should  be 

(ft)  Ord.  XXXY.  23 ;  Dan.  Ch.  (Z)  Pan.  Ch.  Pr.  1591. 

Pr.  1590.     Creditors  after  a  de-  (m)    lb.;  Ord.   XXIX.   2,   3 ; 

cree  may  make  an  application  to  Set.   on   Deer.   1020 ;  see  as  to 

compel  a  receiver  to  bring  in  his  order  nisi  for  committal,  Davies 

accounts  ;  Locke  v.  Ash,  1  Hog.  v.   Cracraft,  14  Ves.  143  ;  Scott 

143;  see  as  to  form  of  summons,  v.  Platel,  2  Ph.  229;  see  as  to 

3  Dan.  Ch.  Pr.  1 757, 1760  ;  see  as  order  absolute,  Blair  v.  Toppitt> 

to  form  of  order,  Set.  on  Deer.  Set.   on   Deer.    1019 ;   see  as  to 

1018.  whether   attachment   can   be  is- 

(i)  Ord.  XXXV.  23 ;  Dan.  Ch.  sued  against  a  receiver,  Dan.  Ch. 

Pr.  1590.  Pr-  1591  n. 

(k)  Ord.  XXIX.  2,  3. 


256  ACCOUNTS. 

pursued  against  a  receiver  who  is  directed  to  pay  his 
balance  to  the  parties  instead  of  into  court,  and  neglects 
to  do  so.  It  is  irregular  to  issue  a  writ  of  ji.  fa.  for 
such  balance.(n) 

The  four  days'  order  may  be  had  by  one  of  several 
joint  receivers  against  another  who  is  in  default.  For 
though  the  receivers  be  duly  bound  to  account  jointly, 
each  of  them  must  bring  in  his  accounts  of  what  he 
individually  receives,  and  so  long  as  one  of  them  is  in 
default,  the  four  day  order  is  of  course.(o) 

A  receiver  may  be  ordered  to  pass  his  accounts  and 
pay  over  the  balance,  although  the  bill  has  been  dis- 
missed,^) or  the  proceedings  have  been  ordered  to  be 
stayed.^) 

Disallowance  of  Salary  and  Charge  of  Interest  for 
Non-payment,  or  not  leaving  Accounts.— TVhere  a  re- 
ceiver neglects  to  leave  or  pass  his  accounts  and  pay 
balances  thereof  at  the  times  fixed  for  the  purpose,  the 
judge  before  whom  such  receiver  has  to  account  will, 
from  time  to  time,  when  his  subsequent  accounts  are 
produced  to  be  examined  and  passed,  not  only  disallow 
the  salary  therein  claimed  by  such  receiver,  but  also 

(n)    Whitehead  v.  Lyncs,   34  the  matter  should   be  tried  and 

Beav.  L61 ;  affd.  12  L.  T.  N.  S.  the  damages  assessed  in  au  action 

332.     A   writ  of  fi.  fa.   having  at  law ;  lb.  34  Beav.  165. 

been  pnl  in  execution  against  a  {<>)  Scott  v.  Platel,  2  Ph.  229. 

receiver    to    Compel    payment    of  (/>)  Pitt  v.  Jioinnr.  .">  Sim.  "iTT  ; 

moneys  whicb  he  had  neglected  sec  ffutton  v.  Beeton,  '.)  Jur.  N. 

in  pay,  the  court,  on  the  desire  of  S.  L339. 

the  defendant,  would  not  itself  {,/)  Paywter  v.  Carcw,  Kay, 

the  damages  sustained  by  App.  36,  44. 
the    receiver.    I»ut    ordered    that 


ACCOUNTS.  257 

charge  him  with  interest  after  the  rate  of  £5  per  cent, 
per  annum  upon  the  balance  so  neglected  to  be  paid 
by  him,  during  the  time  the  same  shall  appear  to  have 
remained  in  his  hands.(r) 

In  the  case  of  a  receiver  of  annual  rents  and  profits, 
he  will  be  charged  with  interest  from  the  time  of 
receipt  ;*  but  in  a  case  where  a  receiver  was  appointed 
of  the  personal  estate  of  a  testator,  the  court  would 
not  charge  him  with  interest  on  each  sum  from  the 
time  it  was  received,  but  charged  him  as  an  executor 
would  be  charged  ;  that  is,  by  making  yearly  or  half- 
yearly  rests  in  his  account. (s) 

The  same  remedies  appear  to  be  available  against  a 
receiver  after  he  has  been  discharged.  In  a  case  where 
a  receiver  who  had  been  discharged  had  not  paid  in 
his  balance,  he  was  ordered  to  pay  in  the  same,  and 
also  the  amount  allowed  for  his  salary,  together  with 
interest  on  both  sums  at  £5  per  cent,  from  the  day 
appointed,  and  to  pay  the  costs  of  the  application. (t) 
Where,  howrever,  default  has  been  made  by  the  execu- 


{)■)  Orel.  XXTV.  2;  Bristowe  Broionhead  v.  Smith,  Uur.  237  ; 

v.  Needham,  9  Jur.  N.  S.  1168  ;  see  as  to  the  practice  of  the  Court 

11  W.  K.   926;    see   as   to   the  of  Chancery  in  Ireland,  Purcell 

practice    before    the     Order    of  v.  Woodley,  10  Ir.  Kq.  422;  Dease 

April,  1796,  Fletcher  v.  Bodd,  1  v.  Reilly,  4  Dr.  &  War.  284. 
Ves.  Jr.  85 ;  see  as  to  the  prac-         (s)  Potts  v.  Leighton,  15  Ves. 

tice   under  the   order  of  April,  277. 

1796, v.  Jolland,  8  Ves.  72  ;         (t)  Harrison  v.  Boydell,  6  Sim. 

Potts  v.  Leighton,  15  Ves.  277  ;  211. 

1  See  Weems  v.  Lathrop,  42  Tex.  207. 

17 


258  ACCOUNTS. 

tors  of  a  deceased  receiver,  the  sureties  were  only 
ordered  to  pay  interest  at  £4  per  cent.(w) 

A  receiver  may  be  charged  with  interest  on  moneys 
improperly  kept  in  his  hands,  although  he  has  passed 
his  accounts,  and  all  parties  have  expressed  themselves 
satisfied  ;  and  for  this  purpose  an  inquiry  what  money 
he  has  received  from  time  to  time,  and  how  long  he 
has  kept  it  in  his  hands,  may  be  directed  ;(x)  and  in 

v.  Jolland,(y)  Lord  Eldon  appeared  to  think  that 

if  such  a  case  should  be  brought  before  him,  he  should 
direct  a  receiver  to  make  good  any  loss  which  might 
be  occasioned  from  a  difference  in  the  price  of  the 
funds  between  the  time  when  the  receiver's  balance 
was  paid  in  and  the  times  when  they  ought  to  have 
been  paid  in. 

In  Hicks  v.  Bicks,(z)  where  a  receiver  had  been  ap- 
pointed during  the  minority  of  an  infant  who  had  no 
guardian,  and  was  directed  to  place  out  the  surplus 
rents  and  profits,  when  they  should  amount  to  a  com- 
petent sum,  with  the  approbation  of  the  Master,  on 
Government  or  other  securities,  but  omitted  so  to  do, 
Lord  llardwicke  directed  that  he  should  pay  interest 
at  the  rate  of  £4  per  cent,  on  the  surplus  rents  and 
profits  from  the  date  of  the  decree  until  the  infant 
(•nine  of  age,  although  the  infant  two  days  after  he 
came  of  age  settled  accounts  with  the  receiver,  who 


[n)  Clements  v.  Bereaford,  1<>        (.v)  8  Ves.  VJ,  7.'{. 
Jup.  771.  I   I  3  A.tk.279. 

,     Fletcher  v.  Dodd,  I  Ves. 


ACCOUNTS.  259 

delivered  up  his  vouchers  and  gave  him  copies  of  all 
the  accounts  passed  by  the  Master. 

It  seems  to  have  been  considered  by  the  Masters 
that  they  were  not  bound  to  be  actors  is  applying  the 
General  Order  of  April,  1796,  upon  which  the  present 
Order  XXIV.  2,  is  founded,  and  that  unless  the  objec- 
tion to  the  allowance  of  poundage  to  the  receiver  was 
raised  by  the  parties  before  the  Masters,  the  court 
would  not,  as  far  as  regarded  poundage  and  costs  pro- 
perly incurred,  open  the  report  of  the  Master  ;(a)  but 
it  is  not  quite  so  clear  that  this  was  always  the  rule,(6) 
nor  does  such  a  construction  appear  to  be  consistent 
with  the  peremptory  terms  of  the  order.(c) 

Accounts  of  Deceased  Receiver.— An  order  may  be 
obtained  at  chambers  for  the  executors  of  a  deceased 
receiver  to  be  at  liberty  to  pass  his  accounts  and  pay 
in  the  balance.(^)  In  a  case  where,  on  the  executors' 
application,  liberty  had  been  given  them  to  pass  their 
accounts  and  pay  in  the  balance,  they  were  not  allowed 
after  the  lapse  of  many  years  to  object  to  the  order  on 
the  ground  of  want  of  assets.(e) 

The  order  cannot,  however,  be  obtained,  except  upon 
the  consent  of  the  executors.     If  the  executors  do  not 


(a)  Ward  v.  Swift,  8  Ha.  142.  on  Deer.  1022  ;  see  15  Sim.  483  ; 

(6)  See  Potts  v.  Leighton,  15  see  as  to  form  of  summons,  3  Dan. 

Ves.  276.  Oh.  Pr.  1761. 

(c)  See  Bristoive  v.  Needham,  (e)     Gurden    v.    Badcock,    6 
9  Jr.  N.  S.  1168  ;  11  W.  R.  926.  Beav.  157. 

(d)  Litthboy  v.  Spooner,  Set. 


260  ACCOUNTS. 

consent,  the  court  has  no  jurisdiction  to  order  in  a 
summary  way  that  they  shall  bring  in  and  pass  his 
accounts,  and  pay  the  balance  out  of  his  assets.(/) 
The  proper  course  to  follow,  if  the  recognizance  can- 
not be  put  in  suit,  is  to  file  a  bill  against  them  for  an 
account,  {g) 

The  admission  by  the  executor  of  a  receiver  of  assets 
to  answer  what  is  due  from  his  testator  is  sufficient  to 
make  the  executor  liable  to  pay  such  interest  as  the 
receiver's  estate  may  be  charged  with  in  respect  of 
the  moneys  produced  by  the  rents  retained  in  his 
hands.(A)  But  if  there  has  been  laches  of  the  parties, 
the  executor  will  only  be  ordered  to  pay  in  the  princi- 
pal money  and  the  costs  of  the  application. (7) 

Putting  Recognizance  in  Suit.— Where  the  receiver 
neglects  to  bring  in  his  accounts,  or,  having  brought 
them  in,  fails  to  pay  the  balance  certified  to  be  due 
from  him  within  the  time  limited,  if  he  has  been  pro- 
ceeded against  to  a  contempt,  the  party  prosecuting 
the  contempt  may  put  the  recognizance  in  suit  against 
I  lie  sureties.  But  he  is  not  at  liberty  to  sue  the 
sureties  until  he  has  proceeded  to  get  the  receiver  into 
contempt,  unless  the  receiver  has  become  bankrupt,  or 
unless  he  is  prepared  to  .show  that  such  proceedings 
would  1>«'  uscless.(/;) 

{j)  Jenkins  v.  Bryant,  7  Sim.  •'.  •'.  616;   Tew  v.  Lord   Win- 

17  1:  see  Ludgaterv.  Channell,  terton,c\t.4  Ves.  606. 

m.  482 ;  3  Mac.  &  G.  180.  (t)    Gurden    v.    Badcock,    0 

(,/!  hudgalery.  Channel^  1">  Beav.  L57. 

182-;  3  Mac.  &  <:.  L80.  (/.•)  Smith,  Oh.  Pr.  L037. 
(/i)  Foster  \ .  Fosti  r.  2  Bro. 


ACCOUNTS.  261 

The  recognizance  being  given  to  the  Master  of  the 
Rolls,  and  the  senior  Vice-Chancellor  for  the  time 
being,(7)  it  cannot  be  enforced  without  the  leave  of 
the  court ;  and  whether  or  not  it  shall  be  enforced  is  a 
matter  for  the  discretion  of  the  court. (m)  An  order 
accordingly  must  be  obtained  to  authorize  the  pro- 
ceeding. This  order  is  usuall}-  obtained  on  summons 
which  must  be  served  personally  on  the  receiver,  or 
his  representatives,  and  the  sureties  also,  if  they  are 
to  be  proceeded  against.(n) 

An  order  for  leave  to  put  the  recognizance  in  suit 
having  been  obtained,  the  next  step  is  to  proceed  by 
sci.  fa.,  in  the  names  of  the  Master  of  the  Rolls  and 
senior  Vice-Chaucellor,  or  other  the  cognizees  named 
in  the  recognizance,  or  the  survivor  of  them,  or  the 
executors  or  administrators  of  the  survivor,(o)  against 
the  cognizors  therein  named,  or  any  of  them,  or  their 
respective  heirs,  executors,  or  administrators.(p) 

Upon  the  death  of  a  receiver,  the  parties  interested 
may  come  to  the  court  either  against  his  representa- 
tives or  against  his  sureties,  and  they  should  in  the 
first  place  apply  against  both,  to  avoid  the  objection 
which  each  might  raise  to  the  absence  of  the  other. 
The  court,  therefore,  without  deciding  which  of  these 

(/)  Supra,  pp.  1G0,  161.  (o)  Set,  on  Deer.  1019. 

(m)  1  Dr.  &  War.  226  ;  3  Mac.  (p)  Dan.  Ch.  Pr.  159-4  ;  see  as 

&  G.  178.  to    proceedings    by  sci.  fa.,  lb. 

(n)    Thurlow   v.    Thurlow,  4  1595,  1596,1597, 1598, 1599  ;  see 

Jur.  982  ;  Dan.  Ch.  Pr.  1593;  see  also,  as  to  form  of  writs,  &c.  in 

as  to    form    of   summons,  3  lb.  proceedings  by  sci.  fa.,  3  II).  1763 

1762 ;    see  as  to    order    in  such  -1772. 
case,  Set,  on  Deer.  1018. 


262  ACCOUNTS. 

parties  are  primarily  liable,  will  order  on  petition  that 
the  deceased  receiver's  recognizance  may  be  enforced 
against  his  real  and  personal  representatives  and  sure- 
ties, notwithstanding  an  alternative  prayer  that  the 
personal  representatives  may  pass  the  accounts.^)1 

It  was  laid  down  by  Shadwell,  V.-C.,on  the  authority 
of  the  registrars,  to  be  the  practice  not  to  put  the 
recognizance  in  suit  against  the  surety  in  default  of 
the  receiver  paying  what  was  due  from  him  without 
the  amount  being  first  ascertained,  except  where  the 
receiver  had  absconded ;  and  that  a  breach  of  the 
recognizance  by  non-payment  of  the  balance  reported 
due  from  the  receiver  ought  to  be  shown  as  a  ground 
for  granting  an  application  for  liberty  to  put  the 
recognizance  in  suit  ;(r)  but  Lord  Truro  thought  that 
the  recognizance  may  also  be  enforced  against  the 
surety  in  the  case  of  a  deceased  receiver  without  ascer- 
taining the  amount  due,  when  there  is  no  means  of 
ascertaining  or  enforcing  the  claim.  The  case  of  an 
absconding  receiver,  as  put  by  the  registrars,  he  re- 
L:;ir<l>'<!  as  only  an  example  of  an  exceptional  case  in 
which  it  was  difficult  to  ascertain  the  amount  due.(s) 


(7)    Ludgater  v.  Channell,  3        (>•)  [b.;  L5  Sim. 480. 
Mac.  &  G.  175.  (s)  [b.;  :t  Mac.  4  G.  L80. 

1  Sue  Weema  v.  Lathorp,  42  Tex.  213. 


CHAPTER  XL 

DISCHARGE  OF  A  RECEIVER. 

To  divest  the  possession  of  a  receiver,  an  application 
to  the  court  for  his  discharge  is  in  general  necessary  .(a) 
The  appointment  of  a  receiver,  however,  made  previous 
to  a  decree,  will  be  superseded  by  it,  unless  the  receiver 
is  expressly  continued.(6)  So,  also,  an  injunction  to 
put  a  purchaser  into  possession  is  in  itself  a  discharge 
of  the  order  for  a  receiver  as  to  the  lands  mentioned 
in  the  injunction.(c)1  So,  also,  where  the  estate  expires 
over  which  a  receiver  has  been  appointed,  the  rever- 
sioner or  remainderman  need  not  apply  to  have  the 
receiver  discharged,  for  the  legal  estate  vesting  in  pos- 
session, and  there  being  an  indisputable  right  to  enter, 

(a)   Thomas  v.  Brigstocke,  4  see  as  to  form  of  order,  Set.  on 

Russ.  64:  see  Neivman  v.  Mills,  Deer.  1003. 

1  Hog.  291.  (c)  Ponsonby  v.  Ponsonby.  1 

(&)°Dan.  Oh.  Pr.  1601  ;  see  Hog.  321  ;  Anon.,  2  Ir.  Eq.  416. 
Reeves  v.  Neville,  10  W.  R.  335  ; 

1  So,  also,  where  a  decree  was  made  in  a  cause,  in  which  a  receiver 
had  been  appointed,  authorizing  and  directing  one  of  the  parties  to 
take  certain  goods  from  the  receiver,  and  the  part}7  refused  to  take 
the  goods,  or  withdraw  them  from  the  custody  of  the  receiver,  it  was 
decided  that  the  latter  held  the  property  specified  only  as  the  trustee 
for  the  party,  and  not  as  receiver,  although  there  had  been  no  formal 
order  of  discharge.      Very  v.  Watkins,  23  How.  475. 


264  DISCHARGE   OF   A    RECEIVER. 

it  is  not  necessary  there  should  be  an  order  discharging 
the  reeeiver.(rf) 

Discharge  of  Receiver  on  his  own  Application.— When 
a  receiver  has  been  appointed  and  has  given  security, 
he  cannot  be  discharged  upon  his  own  application 
without  showing  some  reasonable  cause  why  he  should 
put  the  parties  to  the  expense  of  a  change.(e)1  If,  how- 
ever, he  can  show  reasonable  cause  for  his  discharge, 
he  will  he  allowed  to  deduct  the  costs  of  and  incidental 
to  the  application  for  discharge  out  of  the  balance  in 
hand.(/)  Infirmity,  which  prevents  the  receiver  from 
properly  performing  his  duties,  and  ill  health  increased 
by  the  anxieties  of  the  duties  of  his  office,  afford  a 
sufficient  excuse  for  his  diseharge.(^) 

A  receiver  who  wishes  to  be  discharged,  and  cannot 
show  any  reasonable  cause  for  putting  the  parties  to 
the  expense  of  a  change,  will  not  be  discharged  at  his 
own  request,  unless  on  the  terms  of  his  paying  the 
costs  of  the  appointment  of  another  receiver  and  con- 
sequent thereon. 

A  receiver  ought  not  to  present  a  petition  to  be  dis- 
charged to  come  on  with  the  cause  on  further  direc- 
tions, as  the  court  will  make  an  order  on  further 
directions  without  any  such  petition.  The  costs  of 
the  petition  will  be  refused. (A) 

(</)  Britton  v.  McDonnell,  ">  (/)  Richardson  v.  Ward,  (> 

[r.  Bq.  '27:. ;  Re  Stack,  13  Er.  Ch.  Madd.  266. 

213.  (<j)   ll». 

(r)  Smith  v.  Vaughan,  Ridg.  (h)  Stilwell  v.  Mellersh,  20  L. 

temp.  I  lard.  251.  .T.  Ch.  :'>.'»<>. 

1  See  Beers  v.  The  Chelsea  Bank,  I  Edw.  C.  K.  277. 


DISCHARGE    OP   A   RECEIVER.  265 

Discharge  of  Receiver  on  Satisfaction  of  Incumbrance. 
— A  receiver  is  generally  continued  until  the  decree  ;* 
but  if  the  right  of  the  plaintiff  ceases  before  that 
time,  the  receiver  may  be  discharged,  and  cannot  be 
continued  at  the  instance  of  a  defendant. (i)  In  a  case, 
accordingly,  where  a  receiver  had  been  appointed  at 
the  suit  of  an  annuitant,  and  the  plaintiff  had  been 
satisfied  by  the  payment  of  his  demand,  Lord  Eldon 
held  that  the  order  for  a  receiver  must  be  discharged, 
although  the  discharge  was  opposed  by  two  creditors 
having  prior  annuities  to  the  plaintiff.  "  With  the 
right  of  the  plaintiff  to  have  a  receiver,"  he  said, 
"  must  fall  the  rights  of  the  other  parties.  It  would 
be  most  extraordinary,  if,  because  a  receiver  has  been 
appointed  on  a  behalf  of  the  plaintiff,  a  defendant  is 
entitled  to  have  a  receiver  appointed  on  his  behalf."(&)2 

'  (i)  Davis  v.  DuJce  of  JIarl-  Largan  v.  Bowen,  1  Sch.  &  Lef. 

borough,  2  Sw.  167,168.  296;    Murrough  v.    French,  2 

(k)  lb.;  see  Sanlcey  v.  O'Maley,  Moll.  498. 
2  Moll.  421  ;  but  see  2  Sw.  118  ; 

1  Ordinarily  the  appointment  of  a  receiver  continues  during  the 
pendency  of  the  suit  until  a  decree  is  rendered  ;  and  where  the  term 
of  his  office  is  intended  to  be  limited,  that  intention  should  be  ex- 
pressed in  the  order.      Weems  v.  Lathrop,  42  Tex.  210. 

2  This  subject  was  discussed  and  the  authorities  reviewed  in 
Beverley  v.  Brooke,  and  Beverley  v.  Scott,  4t  Grattan,  187.  Ac- 
tions had  been  instituted  by  conflicting  claimants  of  a  trust  fund,  and 
a  receiver  appointed  in  one.  It  was  held  that  the  appointment 
should  enure  to  the  benefit  of  the  plaintiff  in  the  other  action  upon 
the  establishment  of  his  superior  right  to  the  fund ;  and  the  court 
repudiated  the  idea  that  a  receiver  could  not  be  continued  for  the 
benefit  of  parties  other  than  the  complainant  in  the  cause.  See  the 
remarks  of  Baldwin,  J.,  in  pp.  223-224. 

And  so  in  Wiiteside  v.  Prendergast,  2  Barb.  C.  472,  the  Chan- 


266  DISCHARGE    OF    A   RECEIVER. 

In  other  cases,  however,  of  a  somewhat  similar  charac- 
ter, proceedings  have  been  stayed  without  prejudice  to 
the  order  appointing  a  receiver.(£) 

Discharge  of  Receiver  on  his  Continuance  being  un- 
necessary.—If,  during  the  course  of  the  proceedings, 
the  continuance  of  a  receiver  becomes  unnecessary,  he 
will  be  discharged.  Thus,  in  a  case  where  a  receiver 
had  been  appointed  in  consequence  of  the  misconduct 
and  incapacity  of  trustees  under  a  will,  he  was  ordered 
to  be  discharged  on  the  appointment  of  new  trustees 
who  undertook  to  enter  into  a  recognizance  to  account 
half-yearly  in  the  same  way  as  a  receiver,  and  agreed 
to  act  without  a  salary. (m)  So,  also,  in  a  case  where 
a  receiver,  who  had  been  appointed  by  reason  of  the 
executors  having  refused  to  act  under  a  testator's  will, 
quitted  his  place  of  residence  in  the  vicinity  of  the 
estates  in  respect  of  which  he  had  been  appointed 
receiver,  the  court,  on  the  consent  of  the  other  parties 
to  the  cause,  and  the  executors  expressing  their  willing- 
ness to  act,  made  an  order  that  the  receiver  should 

{I)  Darner  v.  Lord  Partarling-       {»»)    Bairibrigge  v.  Blair,  :s 
ton, 2  Pli.:: I;  Paynterv.  Carew,     Beav. 421, 423. 
18  Jur.  419;  sic   Murrough  v. 
French,  •-'  Moll.  498. 


cellor  ( Walworth)  approved  <>!*  Murrough  v.  Fn  nch,  and  Largan  v. 
Jlmr,  n  [supra,  notefc),  and  Baid  thai  "  if  tin'  protection  of  tin-  rights 
of.a  defendanl  requires  the  continuance  ofn  receiver,  the  courl  will 
ihiI  granl  ;>  discharge,  although  tin'  suit  is  :M  an  end  ;  liui  it  will  re- 
quire the  defendant  thus  protected  to  files  bill  forthwith  to  settle 
liin  rights. "  Bee  also  on  the  general  subject,  Milwaukee,  §rc.  /•'•  />'• 
Soutter,  '-'  Wallace,  510. 


DISCHARGE   OF   A   RECEIVER.  2G7 

pass  his  accounts.(?i)  So,  also,  in  a  case  where  a  re- 
ceiver had  been  appointed  at  the  suit  of  an  annuitant, 
he  was  discharged  on  the  payment  of  the  arrears  of 
the  annuity,  there  being  no  reason,  under  the  circum- 
stances of  the  case,  why  he  should  be  continued.(o)1 

Other  Causes  for  discharging  a  Receiver.— A  receiver 
is  liable  to  be  discharged  for  irregularity  in  carrying 
in  his  accounts,  and  for  making  it  necessary  for  com- 
pelling him  to  do  so,  and  for  so  passing  his  accounts 
that  the  amount  of  the  balance  in  his  hands  cannot  he 
ascertained.  (_p) 

It  seems  that  a  charge  of  misbehavior  against  a 
receiver  for  suffering  the  owner  of  the  estate  to  remain 
in  part  possession,  to  the  prejudice  of  the  estate,  will 
not  be  admitted  as  a  reason  for  discharging  the  re- 
ceiver, because  the  parties  themselves  have  caused  the 
loss  by  not  compelling  the  owner  by  the  authority  of 
the  court  to  deliver  up  possession  to  the  receiver.(^) 

Where  a  receiver  becomes  bankrupt,  he  will  be  dis- 
charged and  a  new  receiver  appointed. (r) 

(n)  Davyy.  Gronoiv,  14  L.  J.  (?>)  Bertie  v.  Lord  Abingdon, 
Ch.  134.  8  Boav.  53. 

(o)  Braham  v.  Strathmore,  8  {q)  Griffith  v.  Griffith,  2  Yes. 
Jur.  567.  400. 

(r)  Dan.  Cb.  Pr.  1601. 


1  When  a  railroad  company,  whose  property  has  been  placed  in 
the  hands  of  a  receiver  shall  satisfy  the  Chancellor  of  its  ability  and 
readiness  to  operate  the  road,  the  receiver  will  be  ordered  to  deliver 
it  up.  In  re  Long  Branch  and  Seaside  R.  R.  Co.,  9  C.  E.  Green, 
398-401.  But  it  must  also  show  that  it  is  entitled  to  the  possession. 
Id.  402. 


268  DISCHARGE   OF    A   RECEIVER. 

Discharge  of  Receiver  over  Estate  of  Infant.— In  the 
case  of  an  infant,  it  is  not  right,  to  vacate  the  recogni- 
zance of  a  receiver  appointed  in  his  behalf  on  his 
coming  of  age,  and  the  receiver  passing  his  accounts, 
for  defalcations  are  sometimes  found  after  a  great 
length  of  time ;  and  if  it  be  proved  twenty  years  after 
that  a  receiver  has  not  accounted  for  what  he  has 
received,  the  money  might  be  recovered  under  the  re- 
cognizance if  it  has  not  been  vacated. (5)  Lord  Kenyon 
held  that  a  receiver  should  not  have  his  recognizance 
discharged  till  one  year  after  the  infant  has  attained 
his  age  of  twenty-one,  and  Lord  Eldon  approved  of 
the  rule.(/") 

Discharge  of  Receiver  of  Estates  decreed  to  be  sold.— 
Where  estates  have  been  decreed  to  be  sold,  the  re- 
ceiver will  be  continued  until  the  conveyances  are 
executed  under  the  decree,  in  order  that  he  may  collect 
the  arrears  of  rent.(w)  In  this  case  the  party  refused 
to  execute  a  conveyance,  as  there  were  arrears  of  rent 
due,  and  lie  would  thereby  extinguish  his  remedy,  but 
the  court  directed  the  receiver  to  be  continued  in 
regard  to  those  rents  down  to  the  day  of  executing 
the  conveyance  before  the  purchaser  should  be  let  into 
possession,  and  directed  the  tenants  to  be  compelled  to 
p;i\  their  arrears  in  the  name  of  the  receiver  according 
to  the  course  of  the  court.(v) 


(s)  Anon.,  cited  '1  Bfadd.  Ch.        (it)    Quin   v.  Hull  .ml,  Etidg. 

temp.  Hard.  295. 

(I)  \\>.  {<■)  II,. 


DISCHARGE    OF   A    RECEIVER.  269 

Receiver  not  discharged  until  Balance  due  to  him  on 
his  Accounts  shall  be  paid.— A  receiver  will  not  be  dis- 
charged until  he  shall  have  received  from  the  parties 
interested  in  the  estate  the  balance  that  shall  be  fouud 
due  to  him  on  passing  his  accounts.^) 

Receiver  not  discharged  on  Application  of  one  Party- 
only.— A  receiver  being  appointed  for  the  benefit  of 
all  the  parties  interested,  he  will  not  be  discharged 
merely  on  the  application  of  the  party  at  whose  in- 
stance he  was  appointed  ;(y)  nor  where  a  receiver  has 
been  appointed  on  behalf  of  infant  tenants  in  common 
will  he  be  discharged  as  to  the  share  of  one  of  them 
who  has  attained  twenty-one.(^) 

Mode  of  Application  to  discharge  a  Receiver.— The 
application  to  discharge  a  receiver  may  be  made  by 
petition,  motion,  or  summons,(a)  or  the  direction  for 
the  discharge  of  a  receiver  may  be  given  in  the 
decree  at  the  hearing,  or  in  the  order  upon  further 
considerations.^) 

Application  must  be  served  on  Parties.— The  petition, 
or  summons,  or  notice  of  motion  should  be  served  on 


[x)    Bert '-and  v.   Davies,  31  (a)  Set.  on  Deer.  1023  ;  see,  as 

Beav.  436,  infra.  to    forms   of  petition,  notice    of 

[y)  Dnvies  v.  Duke  of  Marl-  motion,  and  summons,  3  Dan.  Ch. 

bor.ugh,  2  Sw.  118;  Bairibrigge  Pr.  1774,  1775. 

v.  Blair,  3  Beav.  421,  423.  (6)  Set.  on  Deer.  1023. 

(z)  Smyth  v.  Lyster,  4  Beav. 
227,  229. 


270  DISCHARGE   OF   A   RECEIVER. 

all  the  parties.^)1  The  service  should  be  personally 
on  the  receiver,  and  such  service  will  not  be  dispensed 
with,  unless  an  order  for  substituted  service  be  ob- 
tained.^) But  a  receiver  though  served  is  not  entitled 
to  appear  at  the  hearing  of  the  application.  If  he 
appear,  he  will  not  be  allowed  the  costs  of  the  applica- 
tion.^) 

Form  of  Order  on  discharging  Receiver.— If  the  re- 
ceiver has  not  passed  his  final  account  and  paid  over 
the  balance  found  due  from  him,  the  order  directs  him 
so  to  do ;  and  if  he  has  given  a  recognizance,  it  directs 
the  recognizance  to  be  vacated  on  his  passing  his 
final  accounts  and  paying  the  balance  found  due  from 
him,  if  that  has  not  already  been  done.(/)  An  office 
copy  of  the  recognizance,  if  any,  must  be  procured 
from  the  Enrolment  Office,  and  left  at  the  time  of 
bespeaking  the  order.(^) 

Vacating  Recognizance.— When  a  recognizance  is 
directed   to   be   vacated,   the   order   must   be    taken, 


(r)  Dan.  <'h.  Pr.  L601.  vacate  a  receiver's  recognisance 

(d)Att.-Gen.  v.  Haberdashers'  may   ho    made    by    petition    of 

Company,  2  Jur.  915.  course.     Dan.  Ch.  Pr.  1601,  n.; 

(e)   Herman    v.    Dunbar,  23  Bee  as  to  form   of  summons   to 

IJeav.  312.  vacate  recognizance,  :t  Dan.  Ob, 

(/)  Set.  mi  Deer.  1021,  L022.  Pr.  L776. 

Dan.  Ch.  Pr.  L602.     Bj  consenl  (g)  Reg.  L5th  March.  L860;  r. 

of  all  parties  an  application  to  .''>'"> ;  Dan.  Oh.  IV.  L602. 

1  A  receiver  is  not  freed  by  his  discharge  from  liability  to  a  party 
who  had  n<>  notice  of  the  motiou  for  discharge.  Miller  v.  Loeb,  64 
Barb.  154 


DISCHARGE   OF    A    RECEIVER.  271 

together  with  an  office  copy  of  the  Chief  Clerk's  cer- 
tificate, and  the  Accountant  General's  certificate  of 
payment  of  the  balance  into  court,  or  an  office  copy  of 
the  affidavit  of  payment  of  the  balance  to  the  person 
entitled  to  it,  where  the  order  directs  such  payment 
to  the  Secretary  of  the  Master  of  the  Rolls,  who,  if  the 
evidence  of  payment  is  satisfactory,  makes  a  note  of 
it,  and  marks  the  order  with  his  initials.  The  order 
must  then  be  taken  to  the  Enrolment  Office,  and  the 
recognizance  will  be  marked  as  vacated. (A) 

Receiver  who  has  been  discharged,  not  paying  in  his 
Balance,  disallowed  Salary  and  charged  Interest.— A  re- 
ceiver who  has  been  discharged  and  does  not  pay  in 
his  balance  as  directed,  is  subject  to  the  order  of  1796, 
and  the  order  which  is  founded  on  it,  and  will  be 
ordered  to  pay  in  the  balance,  with  the  amount  of  his 
salary,  and  interest  at  five  per  cent,  on  both  sums,  from 
the  day  first  appointed,  as  well  as  the  costs  of  the 
motion,  (i) 

Deposit  of  Receivership  Book.— Where  a  receivership 
has  been  completed,  the  book  containing  the  accounts 
is  to  be  deposited  in  the  Clerk  of  Records  and  Writs 
Office.(&) 

(7i)  Dan.  Oh.  Pr.  1602  ;  Smith  (*)  Harrison  v.  Boy  dell,  6  Sim. 
Ch.  Pr.  1039.  211. 

(k)  Ord.  XXIV.  4. 


CHAPTER  XII. 

LIABILITIES  AND  RIGHTS  OF  SURETIES. 

Where  Sureties  discharged  at  their  own  Request— 
The  sureties  for  a  receiver  will  not  be  discharged  at 
their  own  request.  AYhere,  therefore,  an  application 
was  made  to  discharge  a  receiver  on  the  ground  of 
misconduct,  and  the  sureties  joined  in  the  application, 
Lord  Ilardwicke  held  that  no  regard  was  to  be  had  to 
their  application  unless  it  was  for  the  benefit  of  the 
estate,  or  unless  there  be  special  circumstances  in  the 
case,(a)  as,  for  instance,  where  underhand  practice  can 
be  proved,  and  the  person  secured  can  be  shown  to 
have  been  connected  with  such  practice.(6)  In  Swain 
v.  Smith,{c)  a  surety  was  discharged  on  his  own  appli- 
cation, where  he  had  become  such  in  violation  of 
partnership  articles. 

On  Discharge  of  Surety  fresh  Recognizance  is  neces- 
8ary._\Vhcre  a  surety  procures  his  discharge  during 
the  continuance  of  the  receivership,  the  receiver  must 
enter  into  a  fresh  recognizance  with  new  sureties.(^) 

(a)  Griffith  v.  Griffith,*  Ves.  {<■)  Set.  on  Deer.  L021. 

4oi):  Bee  as  i"  iippliruthm  l.y  a  [d)  See  Vaughan  v.Vaughan, 

mretj  for  his  discharge,  O'Kee/e  1  Dick.  90;  Blot's  v,  Betta,  Lb. 

v.  . I rmstrong,  2  Ir.  » !h.  1 1 5.  336. 

(i,)  Hamilton  v.  Bn  water,  2 
Moll.   117. 


LIABILITIES    AND    RIGHTS   OF    SURETIES.  273 

Death,  &c,  of  Surety.— Where  one  of  the  sureties  of 
a  receiver  dies  leaving  real  property  bound  by  his 
recognizance,  his  decease  is  no  ground  for  requiring 
the  receiver  to  procure  a  new  surety.  But  where  it 
appears  that  the  deceased  surety  has  not  left  any  pro- 
perty which  could  be  made  available  for  the  purpose 
of  satisfying  the  recognizance,  the  court  directed  a 
new  surety  to  be  appointed. (e) 

Where  one  of  the  sureties  dies,  or  goes  abroad,  and 
the  receiver  is  unable  to  procure  another  surety,  it  is 
not  the  practice  to  charge  the  receiver  with  the  ex- 
pense of  his  discharge,  or  the  appointment  of  a  new 
receiver.(/) 

When  a  surety  becomes  bankrupt,  the  receiver  is 
usually  required  to  enter  into  a  fresh  recognizance 
with  two  or  more  sureties.  The  order  is  made  on 
summons.^) 

Order  on  Discharge  of  Surety.— In  Shuff  v.  Holdaway, 
an  order  was  made  on  the  application  of  the  surety, 
directing  the  receiver's  accounts  to  that  time  to  be 
passed,  and  that  on  payment  by  the  receiver  or  by  the 
applicant  of  the  certified  balance  (not  exceeding  the 
penalty)  into  court,  the  applicant  should  be  discharged 
as  surety,  and  be  at  liberty  to  apply  to  have  the  recog- 
nizance vacated  as  to  him ;  and  that  the  applicant 
should  be  at  liberty  to  attend  the  taking  of  the  ac- 

(e)  Averall  v.  Wade,  Fl.  &  K.  (g)  Dan.  Ch.  Pr.  1603  ;  see  as 
341.  to  form  of  summons,  3  lb.  1777. 

(/)  Lane  v.  Toivnsend,  2  Ir. 
Ch.  120. 
18 


274  LIABILITIES   AND   RIGHTS   OF   SURETIES. 

counts  ;  but  he  was  ordered  to  pay  the  costs  of  the 
application.(A)1 

Surety  allowed  to  attend  passing  of  Accounts  of  Bank- 
rupt Receiver.— Where  a  receiver  has  become  bankrupt, 
and  the  sureties  are  likely  to  be  called  upon  to  pay 
the  balance  due  from  him,  liberty  will  be  given  to 
them  to  attend  the  passing  of  the  receiver's  account ;(?') 
and  so  where  a  receiver  had  died  in  insolvent  circum- 
stances, and  his  personal  representatives  had  consented 
to  his  final  account  being  taken  in  the  suit  in  which 
he  was  appointed,  liberty  was  given  him  to  attend.(A) 

Extent  of  Liability  of  Surety.— The  surety  is  answer- 
able to  the  extent  of  the  amount  of  the  recognizance 
for  whatever  sum  of  money,  whether  principal,  interest, 
or  costs,  the  receiver  has  become  liable,  including  the 
costs  of  his  removal,  and  of  the  appointment  of  a  new 
receiver  in  his  place.(7)  In  a  case,  however,  where  a 
receiver  had  been  bankrupt,  with  the  knowledge  of  all 
parties,  for  a  considerable  time,  during  which  no  steps 
were  taken  to  compel  the  passing  of  his  accounts,  the 
surety  was  excused  the  payment  of  interest.(m) 

(/i)  Dan.  Oh.    Pr.   1603;   see  (k)  Simmons  v.  Rose,  cit.  Dan. 

also  O'A'eefe  v.  Armstrong, 2  lr.  Ch.  Pr.  1004. 

Ch.  115.  (0   Maunsclly.  Egan,  3  J.  & 

(i)  Raivson  v.  Raynca,  2  Rubs.  L.  251  ;  see  Dawson  v.  Raynes, 

167;  Bee  as  to  form  of  summons  2  Rubb.  467;    ReLockey,]   Ph. 

by  surety  to  attend  the  passing  509. 

of  a  receiver's  accounts,  3  Dan.  (rn)     Dawson    v.    Raynes,  2 

(li    Pr.  L778.  Russ.  466;  see  Re  Herricks,  3 

lr.  Ch.  187. 


1  See  Williamson  v.   Wilson,  1  Jiland,439. 


LIABILITIES    AND    RIGHTS   OF   SURETIES.  275 

Course  for  the  Surety  to  pursue  when  Action  is  brought 
against  him  on  the  Recognizance.— Where  an  action  is 
brought  against  the  surety  upon  the  recognizance,  the 
proper  course  for  him  to  pursue  appears  to  be  to  apply 
to  the  court  by  motion  or  summons,  with  notice  to 
the  parties  interested  in  the  suit  to  stay  the  proceed- 
ings on  the  recognizance,  offering  at  the  same  time  to 
pay  the  amount  due  from  the  receiver,  but  not  ex- 
ceeding the  penalty  of  the  recognizance,  into  court.(n) 
The  surety  must  pay  the  costs  of  the  application,  and 
of  the  proceedings  in  consequence  of  it.(o)  If  the  re- 
ceiver's account  has  not  been  taken,  the  application 
should  also  pray  an  inquiry  as  to  what  is  due  from 
the  receiver.  The  court  may,  it  would  seem,  upon  an 
application  of  this  kind,  indulge  the  surety  by  allow- 
ing him  to  pay  the  balance  in  instalments.^) 

Sureties  should  not  pay  the  Moneys  to  the  Solicitor  of 
the  Plaintiff.— Payment  by  the  surety  to  the  solicitor 
prosecuting  the  proceedings  is  insufficient.  In  a  case 
where  a  surety,  when  sued  upon  his  recognizance,  had 
paid  the  amount  to  the  solicitor  prosecuting  the  pro- 
ceedings, and  then  applied  to  have  his  recognizance 
vacated,  and  served  the  petition  on  the  plaintiff'  who 
did  not  appear,  the  court  would  not  order  the  recogni- 
zance to  be  vacated,  but  directed  the  plaintiff  to  be 
served  with  notice  that  an  order  should  be  made  on  a 


(n)  Walker  v.  Wild,  1  Madd.     recognizance,    3   Dan.    Cb.    Pr. 
528;  Dan.  Ch.  Pr.  1604;  see  as     1773. 

to  notice  of  motion  on  summons         (o)    Walker  v.  Wild,  1  Madd. 
by  surety  to  stay  actions  on  tbe     628. 

(p)  lb. 


276  LIABILITIES    AND   RIGHTS   OF   SURETIES. 

certain  day,  that  the  recognizance  should  he  vacated, 
unless  he  should  show  cause  to  the  contrary.^) 

Surety  paying  Moneys  for  Receiver  entitled  to  be 
indemnified.— If  a  surety  has  been  called  upon  to  pay 
anything  on  account  of  the  receiver,  he  is  entitled  to 
be  indemnified  for  what  he  has  paid  for  the  receiver 
out  of  any  balance  which  may  be  coming  to  him  in 
the  suit.  Therefore,  where  a  receiver  had  borrowed 
money  from  his  surety  to  make  necessary  payments, 
it  was  held  that  the  surety  was  entitled  to  be  repaid 
the  amount  lent  out  of  the  balance  in  court,  reported 
due  to  the  receiver.(r)  Upon  the  same  principle,  the 
share  of  a  receiver  in  property  which  was  being  admin- 
istered by  the  court,  was  held  liable  to  make  good  to 
the  surety  the  amount  paid  by  him  for  the  receiver, 
although  it  was  not  included  in  a  mortgage  which  the 
receiver  had  given  the  surety  as  an  indemnity.(s) 

Right  of  Surety  who  has  paid  the  Amount  due  by  the 
Receiver  to  enforce  Recognizance  against  his  Co-surety. 
— A  surety  who  pays  the  debt  of  his  principal  has  the 
same  right  against  his  co-surety  that  he  has  against 
the  principal,  and  will  be  permitted  to  put  the  recog- 
nizance in  suit  as  against  the  co-surety. (/) 


(q)  Mann  v.  Stenndt,  8  Beav.  (s)  Brandon  v.  Brandon,  3  D. 

189.  &  J.  524. 

(r)  Olosaup  v.  Harrison,  3  V.  (()   Woods  v.  Creayhe,  2  Hog. 

&  B.  134;  Coop.  Gl.  51. 


CHAPTER  XIII. 


MANAGERS  AND  CONSIGNEES. 


Manager.— "Where  a  receiver  is  required  for  the 
purpose  not  only  of  receiving  rents  and  profits,  or  of 
getting  in  outstanding  property,  but  of  carrying  on 
or  superintending  a  trade  or  business,  he  is  usually 
called  a  manager,  or  a  receiver  and  manager.  The  ap- 
pointment of  a  manager  implies  that  he  has  power  to 
deal  with  the  property  over  which  he  is  appointed 
manager,  and  to  appropriate  the  proceeds  in  a  proper 
manner.(a) 

In  what  Cases  appointed.— Where  the  court  appoints 
a  manager  of  a  business  or  undertaking,  it  in  effect 
assumes  the  management  into  its  own  hands  ;  for  the 
manager  is  the  servant  and  officer  of  the  court,  and 
upon  any  question  arising  as  to  the  character  or  details 
of  the  management,  it  is  the  court  must  direct  and 
decide.  Managers,  when  appointed  by  the  court,  are 
responsible  to  the  court,  and  no  orders  of  any  of  the 
parties  interested,  in  the  business  over  which  they  are 
appointed  managers,  can  interfere  with  this  responsi- 
bility. The  court  will  in  no  case  assume  the  manage- 
ment of  a  business  or  undertaking  except  with  a  view 

(a)  Sheppard  v.  Oxenford,  1  K.  &  J.  500. 


278  MANAGERS    AND    CONSIGNEES. 

to  the  winding  up  and  sale  of  the  business  or  under- 
taking. The  management  is  an  interim  management ; 
its  necessity  and  its  justification  spring  out  of  the 
jurisdiction  to  liquidate  and  sell;  the  business  or  under- 
taking is  managed  and  continued  in  order  that  it  may 
be  sold  as  a  growing  concern,  and  with  the  sale  the 
management  en  els.  (b) 

A  manager  may  be  appointed  to  carry  on  a  private 
trade  or  business  so  as  to  wind  it  up  for  the  benefit  of 
the  parties  interested.  In  Steer  v.  Steer,{c)  a  manager 
was  appointed  to  carry  on  the  business  of  the  intestate, 
there  being  no  existing  representative  to  his  estate.((/)1 

The  cases  in  which  managers  are  generally  appointed 
are  partnership  cases.  The  principles  on  which  the 
court  acts  in  appointing  managers  in  such  cases  have 
been  already  pointed  out.(e)2 

Manager  of  Railway  Company.— The  court  will  not 
appoint  a  manager  of  a  railway  company ,(/)3  for,  in 

(b)  L.  R.  2  Ch.  App.  21 1,  212  ;         (c)  Supra,  p.  90,  el  seq. 

per  Lord  Cairns,  see  Waters  v.        •(/)  Gardner  v.  London,  Chat- 
Taylor,  1 5  Ves.  25  ;  supra,  p.  90.     ham,  and  Dover  Railway  Co.,  L. 

(c)  2  Dr.  &  Sm.  311.  R.  2  Ch.   App.  212;   Bowen  v. 

(d)  See  as  to  manager  of  a  Brecon  Railway  Co.,  lb.;  3  Eq. 
newspaper,  Chaplin  v.  Young,  6  545;  Griffin  v.  Bishop's  Castle 
I,  T.  N.  S.  97.  Railway  Co.,  15  W.  R.  1058. 

1  The  court  may  authorize  :i  receiver  to  carry  ou  business;  see 
Marten  v.  Van  Schaick,  I  Paige  C.  R.  479;  Cram-  v.  Ford,  Hop- 
kins, ('.  I:.  Ill ;  Jackson  v.  De  Fores/,  L4  How.  Pr.  R.81  ;  Smith  v. 
New  ForkStage  Co.,  18  AM..  Pr.  Rep.  420;  28  How.  IV.  R.  377. 

2  See  the  cases  cited  in  the  notes  to  page  90,  supra,  and  also 
Weissenborn  v.  Seighortner,  6  C.  R.  Green,  483,  where  Sieghortner 

v.   Weissenborn,  5  M.  177,  is  overruled. 

3  It  witssiud  in  Stevens  v.  Davison,  L8  Grattan,  828,  that,  while, 
for  the  reasons  assigned  in  Gardiner  v.  The  Railway  Co.,  L.  R.  2 


MANAGERS    AND    CONSIGNEES.  279 

addition  to  the  general  principle  that  the  Court  of 
Chancery  will  not  in  any  case  assume  the  permanent 
management  of  a  business  or  undertaking,  there   is 
that  peculiarity  in  the  undertaking  of  a  railway  which 
would  make  it  improper  for  the  Court  of  Chancery 
to  assume  the  management  of  it  at  all.     Where  the 
legislature,  acting  for  the  public  interest,  authorizes 
the  construction  and  maintenance  of  a  railway,  both 
as  a  highway  for  the  public  and  as  a  road  on  which  the 
company  may  themselves  become  carriers  of  passen- 
gers and  goods,  it  confers  powers  and  imposes  duties 
and  responsibilities  of  the  largest  and  most  important 
kind,  and  it  confers  and  imposes  them  upon  the  com- 
pany which  the  legislature  has  before  it,  and  upon  no 
other  body  of  persons.    These  powers  must  be  executed 
and  these  duties  discharged  by  the  company.     They 
cannot  be  delegated   or   transferred.     The   company 
will,  of  course,  act  by  its  servants,  for  a  corporation 
cannot  act  otherwise,  but   the  responsibility  will  be 
that   of  the  company.     The  company   could    not  by 
agreement  hand  over  the  management  of  the  railway 
to  the  debenture  holders.     It  is  impossible  to  suppose 
that  the  Court  of  Chancery  can  make  itself  or  its 

Ch.  App.  201,  a  Court  of  Chancery  will  be  reluctant  to  appoint  a 
receiver  to  take  charge  of  and  manage  a  railroad,  it  is  competent  to 
do  so  where  such  a  course  is  indispensable  to  secure  the  rights  of  the 
legitimate  stockholders  and  to  prevent  a  failure  of  justice.  Under 
the  circumstances  of  this  case  the  court  deemed  the  appointment  of 
such  a  receiver  a  proper  measure.  Such  an  appointment  is  now 
frequently  made.  See  Paige  v.  Smith,  99  Mass.  395  ;  Blumenthal 
v.  Brainerd,  38  Vermont,  408;  The  Delaware,  Lackaivanna,  and 
Western  Railroad  Co.  v.  The  Erie  Railway  Co.,  6  C.  E.  Green, 
298,  and  ante  p.  223,  note. 


280  MANAGERS    AND   CONSIGNEES. 

officers,  without  any  parliamentary  authority,  the 
hand  to  execute  these  powers,  and  all  the  more  im- 
possible where  it  is  obvious  there  can  be  no  real  and 
correlative  responsibility  for  the  consequences  of  any 
imperfect  management.  It  is  immaterial  that  the 
company  do  not  object  to,  or  may  even  desire,  the 
appointment  of  a  manager.^) 

Under  the  provisions,  however,  of  a  late  act,  the 
Eailways  Companies'  Act,  1867,  30  &  31  Vict.,  c.  127, 
s.  4,  a  creditor  who  has  recovered  judgment  against  a 
railway  company  may  obtain,  if  necessary,  the  ap- 
pointment of  a  manager  of  the  undertaking.(A) 

Manager  of  Market,  &c— Though  a  receiver  may  be 
appointed  of  the  tolls  of  a  market,  the  court  will  not 
appoint  a  manager  of  a  market  or  of  the  affairs  of  a 
corporation,  (i)1 

Manager  of  Property  abroad.— "Where  the  suit  relates 
to  property  abroad  or  in  the  colonies,  which  partakes 
of  the  nature  of  a  trade,  it  is  competent  for  the  court 
to  appoint  a  manager.2  The  manager  is  appointed  in 
such  cases,  not  for  the  purpose  of  carrying  on  the  trade, 
but  to  enable  the  court  to  give  relief  when  the  cause 
shall  be  heard. (k)     Persons,  for  instance,  have  been 

[g)  L.  R.2  CI).  App.  212,213,        (?')  De  Winlon  v.  Mayor,  frc, 

per  Lord  Cairns.  of  Brecdn,  2(3  Beav.  542. 

(1i)    Supra,  p.    70;    roc    Re        (k)    Waters  v.  Taylor,  15VeB. 

Stafford  and  Uttoxeter  Railway  25;  per  Lord  Eldon;  Sheppard 

Co.,  3  W.  N.  113.  v.  Oxenford,  1  K.  &  J.  500. 

1  See  Neall  v.  Hill,  1G  Cal.  150. 

2  See  Daniel's  Chan.  Prac.  1149,  3d  Am.  ed. 


MANAGERS    AND    CONSIGNEES.  281 

appointed  to  manage  landed  property,  to  receive  the 
rents  and  profits,  and  convert,  get  in,  and  remit  the 
proceeds  of  property  and  assets,  when  such  property 
has  been  situated  in  India,(/)  the  West  Indies,(w) 
Demerara,(?i)  and  the  Brazils.(o) 

A  person  resident  in  England  may  be  appointed 
manager,  with  authority  to  appoint  an  agent  abroad  in 
the  country  where  the  property  is  situated  ;(p)  and 
sometimes  a  person  resident  in  the  country  where  the 
estate  is  situated  is  appointed  manager.^) 

Consignee.— In  cases  where  the  manager  of  the 
estate  must  necessarily  reside  in  the  country  where 
the  estate  is  situated,  it  is  usual  to  add,  to  the  order 
directing  the  appointment  of  a  manager,  an  order  for 
appointment  of  one  or  more  consignee  or  consignees 
resident  in  this  country,  to  whom  the  produce  of  the 
property  in  question  may  be  remitted,  and  by  whom 
it  may  be  disposed  of.(r) 

A  consignee  acting  under  the  appointment  of  the 
court  is  the  paid  agent  of  the  court  to  manage  the 
estate  which  is  in  the  hands  of  the  court.(s) 

Mode  of  Appointments.— The    course    of  proceeding 

(I)  Logan  v. Princess  of  Coorg,  K.  &  J.  500;  see  as  to  form  of 

Set.  on  Deer.  1038.  order,  lb.    501 ;    Set.    on    Deer. 

(m)  Set.  on  Deer.  1036„1037  ;  1034. 

see  BarHey  v.  Lord  Reay,  2  Ha.  (  p)  Set.  oo  Deer.  1036-1039. 

308.  (?)  lb. 

(n)  Bunbury  v.    Bu'nbury,  1  (r)  Set.  on  Deer.  1035,   1036, 

Beav.  336 ;  Bentinck  v.  Wilh'nk,  1037. 

1  L.  T.  410.  (s)  Morrison  v.  Morrison,  7 

(o)   Sheppard  v.  Oxen/ord,  1  D.  M.  &  G.  226. 


282  MANAGERS    AND   CONSIGNEES. 

under  an  order  for  the  appointment  of  a  manager  and 
consignee  is  the  same  as  that  under  an  order  for  the 
appointment  of  a  receiver,^)  and  the  general  orders  of 
the  court  which  apply  to  receivers  apply  to  managers 
and  consignees  also.(?<) 

Security  in  general  must  be  given.— In  some  cases  a 
manager  of  a  West  India  estate  has  been  appointed 
without  giving  any  security  whatever  ;(x)  but  in 
Rutherford  v.  Wilkinson, (y)  Lord  Giftbrd,  M.R.,  said  it 
had  been  only  done  under  special  circumstances,  and 
that  in  general,  to  warrant  such  a  course,  it  should 
appear  that  no  manager  could  be  found  who  would 
give  security,  or  that  the  person  proposed  was  fit  to 
be  appointed  without  security.  Under  the  circum- 
stances, however,  he  made  the  order  for  the  appoint- 
ment without  security,  with  the  consent  of  such  of  the 
parties  as  could  consent,  but  on  a  subsequent  applica- 
tion in  the  same  cause  security  was  required. (z) 

A  manager  or  consignee  in  England,  unless  he  is 
the  trustee  or  other  legal  personal  representative  of 
the  property,  is  required  to  give  the  usual  security  to 
account  for  what  he  may  receive  ;(a)  and  ordinarily  the 
person  appointed  to  act  abroad  as  manager  must  give 
the  like  security  of  persons  resident  in  this  country. (ft) 
The  manager  of  ji  W'esl  India  estate  is  not  required 
to  give  security  faithfully  to  manage.     Having  a  dis- 

Dan.  Oh.  IV.  L605.  (z)  [b. 

Prel.  Ord.  X..  r.  LO.  (a)  Ord.  XXIV.  I. 

(x)  Set.  on  Deer.  LO  (6)  lb.  Cockburn.  v.  Raphael, 

{>,)    II..  1036,  I  2  Sim.  «<t  St.  453. 


MANAGERS    AND   CONSIGNEES.  283 

cretion  given  him  to  expend  moneys  on  the  estate,  he 
is  only  required  to  give  security  to  account  for  what 
he  shall  receive,  and  to  consign  so  far  as  the  due 
management  of  the  estate  permits.(<?)  In  a  case  where 
a  testator  had  directed  that  a  particular  person  should 
be  appointed  receiver  of  his  estate,  and  was  possessed 
of  no  real  estate  except  an  estate  in  the  West  Indies, 
the  party  named  was  appointed  manager  and  consignee 
upon  entering. into  a  personal  recognizance  to  account 
for  the  produce.(d) 

Executor  or  Trustee  may  be  appointed  Consignee.— 
An  executor  or  trustee  maybe  appointed  consignee.(e) 
The  appointment  of  a  defendant  who  is  an  executor 
or  trustee  to  be  a  consignee  with  the  usual  profits  is 
a  matter  for  the  discretion  of  the  court ;  but,  when 
such  a  discretion  has  been  exercised,  and  an  appoint- 
ment made  under  it  has  been  acted  on,  the  court 
will  not  afterwards  withdraw  its  sanction  from  the 
appointment^/) 

Consigneenot  answerable  for  the  Orders  of  the  Court.— 
A  consignee  appointed  by  the  court,  like  any  other 
servant  or  agent  of  the  court,  not  affected  with  fraud 
or  improper  conduct,  is  not  answerable  for  the  wisdom, 
correctness,  or  propriety  of  the  orders  which  he  re- 


(c)  Morris  v.  Elme,  1  Ves  Jr.  (e)  Marshall  v.  Holloway,  2 
139.  Sw.  432. 

(d)  Hibbertv.Hilbert,     Mer.  (/)  Morrison  v.  Morrison,  4 
681.  M.  &  C.  216. 


28-4  MANAGERS    AND    CONSIGNEES. 

ceives,  or  for  the  directions  by  which    his    acts  are 
sanctioned.(^) 

Consignees  have  a  Charge  on  the  Property  for  pay- 
ments authorized  by  the  Court— Consignees  appointed 
by  the  court  in  an  administration  suit  have  a  charge 
on  the  property  for  payments  sanctioned  by  the  court 
in  priority  to  incumbrances  created  before  the  suit, 
and  will  be  allowed  interest  on  the  balance  due  to 
them. (h)  In  Be  Tharp,(i)  Lord  St.  Leonards  allowed 
a  consignee  appointed  by  the  court  to  be  reimbursed 
from  English  estates  of  the  same  owners,  though  not  a 
receiver  of  the  rents. 

Manager  appointed  in  the  Event  of  the  Death  of  the 
Present  Manager.— The  court,  in  dealing  with  property 
in  a  colony,  may  provide  against  the  inconveniences 
likely  to  arise  from  the  death,  absence,  or  incapacity 
of  the  manager  in  existence,  or  appointed  by  the 
court,  by  appointing  another  manager  to  act  in  such 
event.(&) 

In  Forbes  v.  IIammond,(l)  a  reference  was  granted 
to  approve  of  a  proper  person  to  succeed  the  consignee 
Of  a  West  India  estate  in  the  event  of  his  death,  he 
being  in  a  dangerous  state  of  health,  but  this  was 
done  unwillingly,  because  the  person  chosen  might 
cease  to  be  a  proper  person  before  the  commencement 

(;/)   Morrison  v.  Morrison,  7  (/)  2  8m.  &  <;.  578. 

I).  M.  k  <;.  223.  (/,-)  Rutherford  v.  Wilkinson, 

ili)  li..  2  .-in.  a   <;.  56 1  ;  7  I).  Set,  ou  Deer.  L036. 

M.  i  ft  214.  (/)  l  J.&  W;88. 


MANAGERS    AND   CONSIGNEES.  285 

of  his  office.  The  order  seems  to  have  been  made 
only  on  the  consideration  that  the  question  must  again 
come  before  the  court  on  the  report. 

Manager  not  entitled  to  Crops  severed  before  his  Ap- 
pointment.—A  receiver  or  manager  of  a  West  India 
estate  who  has  been  appointed  at  the  instance  of  a 
mortgagee  is  not  entitled  to  the  produce  of  crops 
severed  and  shipped  to  the  consignee  of  the  mortgagor 
prior  to  his  appointment  as  receiver  and  manager, 
although  they  had  not,  at  the  time  of  the  order,  been 
received  by  the  consignee.(m) 

Commission  of  Manager ;  Allowances.— The  manager 
of  a  "West  India  estate  is  entitled  to  a  commission  so 
long  as  he  is  resident  in  the  island  or  colony,  and  is 
personally  acting  in  the  management  of  the  estate.(w) 
The  commission  is  the  reward  of  his  personal  care 
and  attention. (o)  If  he  is  absent  from  the  island  or 
colony,  he  it  not  entitled  to  the  commission  himself, 
but  he  maybe  allowed  such  sums  as  he  has  really  paid 
to  others  for  the  management  of  the  estate  during  his 
absence,  provided  such  payments  be  in  themselves 
reasonable.(p) 

Manager  or  Consignee  will  not  be  discharged  until  the 
Amount  due  to  them  has  been  paid.— Where  the  court 


(m)   Codrington  v.  Johnstone,  (o)   Chambers  v.   Goldwin,  9 

IBeav.  520.  Yes.  273. 

(n)  Forrest  v.  Elwes,  2  Mer.  (p)  Forrest  v.  Etives,2  Mer. 

69.  69. 


286  MANAGERS    AND   CONSIGNEES. 

has  taken  possession  of  an  estate  by  a  manager  or 
consignee,  it  will,  as  against  all  parties  for  whose 
benefit  the  possession  has  been  held,  refuse  to  permit 
its  officers  to  be  discharged  until  the  amount  due  to 
them  has  been  paid. (q)  A  manager  is  entitled  to  his 
ordinary  commission  and  allowance,  and  also  to  a  lien 
on  the  estate,  as  against  all  persons  interested  in  it, 
for  the  balance,  whatever  it  may  be,  that  shall  be  found 
due  to  him  on  taking  his  accounts.(r) 

Where  a  balance  is  found  due  to  a  consignee  on  a 
final  settlement  of  accounts,  he  cannot  be  discharged 
until  that  balance  is  paid,  and,  if  payment  cannot  be 
made  without  interfering  with  the  inheritance  or 
corpus  of  the  estate,  the  court  would  be  justified  in 
resorting  to  it  for  the  purpose  of  doing  justice  to  the 
consignee.(s)  But  the  case  is  different  where,  pending 
the  consigneeship,  an  order  is  sought  by  a  consignee 
that  the  balance  found  due  to  him  should  be  paid  out 
of  the  corpus.  A  consignee  cannot,  during  the  con- 
tinuance of  his  office,  come  to  the  court  from  time  to 
time,  as  often  as  there  is  a  balance  in  his  favor,  and 
ask  for  payment  out  of  the  corpus  of  the  estate.(^) 

[q)Fra,8er v.  Burgess,  13  Moo.  which  the  question  was  whether 

1'.  <".  246.  consignees  of  West  India  estates 

(?•)    ]><  rl riiuil   v.  Davies,    31  were  entitled    to  be  reimbursed 

Beav.  136.  out  of  moneys  which  had  been 

(.s)  Fnr//uha7-son  v.  Balfour,  awarded  under  the  Act  for  the 

H  Sim.  213.  Abolition  of  Slavery,  lb.;  Shaw 

(t)   lb.;   see,   as  to   cases   in  v.  Simpson,  I  Y.  &  O.C.  ('.  732. 


APPENDIX  OF  FORMS. 


[The  usual  form  of  prayers  for  Receivers  is,  simply,  that  "  a  re- 
ceiver be  appointed  to  (here  set  out  the  purpose  of  his  appointment, 
whether  to  take  charge  of  the  estate  of  a  decedent,  or  the  assets  of  a 
firm,  or  the  property  of  a  corporation,  or  otherwise,  as  the  case  may 
be),  with  such  power  and  authority  therein  as  to  this  Court  may 
seem  meet,  and  as  the  justice  of  this  cause  may  require."  If,  in  any 
case,  it  is  desirable  that  certain  powers  should  be  specifically  prayed 
for  (which  will  seldom  occur),  frame  such  prayers  by  setting  out 
therein  the  powers  desired  to  be  conferred,  for  which  see  forms  here- 
inafter given.] 

I. 

Order  Appointing  a  Receiver  of  a  Railroad  Company. 
In  the  Court  of  the  United  States  for  the 

Between 

a  citizen  of  the  State  of 

and  the  IS.  0.  and  C.  Railroad  Company,  complainants, 
and  The  S.  Railroad  Association,  defendants,  respect- 
ively bodies  corporate  as  particularly  stated  in  the 
Bill  filed. 
And  now, 

upon  filing  the  Bill  in  the  above-entitled  suit  and  on 
motion  of 

solicitor  for  the  plaintiff  therein,  it  is  ordered  and 
decreed  as  follows : 


288  APPENDIX   OF   FORMS. 

That  be  and  he  is  hereby  appointed 

Receiver  of  all  and  singular  the  railroads,  rolling 
stock,  boats,  equipments,  materials,  supplies,  income, 
choses  in  action,  personal  property  of  every  descrip- 
tion, rights,  privileges  and  franchises,  lands,  tene- 
ments and  hereditaments,  now  held  by  or  belonging, 
or  appertaining  to  the  N.  0.  and  C.  Railroad  Com- 
pany, and  of  all  the  books,  accounts,  records,  docu- 
ments, and  papers  of  the  said  Company. 

And  it  is  hereby  further  ordered  that,  so  soon  after 
entering  upon  the  duties  of  his  said  office  as  may  be 
practicable,  the  said  Receiver  shall  cause  an  inventory 
of  all  and  singular  the  rolling  stock,  and  other  personal 
property  which  shall  have  come  into  his  possession  to 
be  made  and  filed  in  the  office  of  the  Court. 

And  is  is  further  ordered  that  the  said  Receiver 
shall  be  invested  with  full  power  and  authority 

I.  To  continue  the  business  now  carried  on  by  the 
said  N.  0.  and  C.  Railroad  Company  in  operating  the 
railroad  in  the  said  bill  mentioned  as  extending  from 
N.  in  the  State  of  Louisiana  to  F.  in  the  State  of  Ken- 
tucky and  the  several  branches  thereof,  and  the  navi- 
gation connecting  the  said  railroad  with  the  railroad 
of  the  I.  C.  Company,  in  such  manner  as  he  shall 
deem  most  advantageous,  and  for  such  purposes  to 
make  such  traffic  arrangements  for  the  interchange  of 
business  with  other  carriers  by  railroad  or  water,  and 
to  do  and  perform  such  things  as  may  be  necessary  or 
advisable  to  continue  and  increase  the  business  of  the 
said  railroad,  as  may  at  the  same   time   be  not  incon- 


APPENDIX   OF   FORMS.  289 

sistent  with  any  requirement  of  law  relating  to  the 
said  business. 

II.  To  keep  the  said  railroad  and  branches,  boats, 
or  vessels,  rolling  stock,  and  all  the  property  of  the 
said  Company,  real  and  personal,  in  good  condition 
and  repair,  so  that  the  said  railroad  may  be  safely  and 
efficiently  operated ;  and  to  the  same  end  he  may  make 
such  additions,  by  purchase  or  lease,  to  the  equipment 
of  the  said  railroads  as  may  be  hereafter  required  to 
keep  up  the  transportation  facilities  thereon  to  a  pro- 
per state  of  capacity  and  efficiency. 

III.  To  employ,  pay,  and  when  necessary  discharge 
all  agents  and  employees  required  to  enable  him  to 
discharge  his  duties  as  Receiver,  and  to  purchase  and 
pay  for  all  necessary  material  and  supplies.  And,  fur- 
ther, to  pay  all  wages  and  salaries  due  by  the  IS".  0. 
and  C.  Railroad  Company  for  services  rendered  during 
the  months  preceding  the  date  of  the  said 
Receiver  entering  upon  the  duties  of  his  office. 

IV.  To  pay  all  lawful  taxes  and  other  charges  and 
assessments  upon  any  and  all  the  said  property,  real  or 
personal.  And  generally  to  make  from  the  income  of 
the  said  railroad  all  such  other  payments  as  may  be 
necessary  or  incident  to  the  possession,  control,  and 
operation  of  the  said  railroad  in  accordance  with  this 
order. 

V.  To  prosecute  or  defend  without  the  further  order 
of  this  Court  all  existing  actions  by  or  against  said 
Company  or  either  of  the  companies  consolidated  into 
it,  and  to  pay  and  defray  the  expenses  properly  inci- 

19 


290  APPENDIX   OF   FORMS. 

dent  thereto ;  to  commence  and  prosecute  any  actions 
which  in  the  course  of  business  he  may  deem  neces- 
sary or  proper  to  commence  hereafter,  either  in  the 
name  of  the  said  company,  or  in  his  own  name,  as 
such  Receiver,  as  he  may  be  advised,  and  to  defend 
all  suits  that  may  hereafter  he  brought  against  the 
said  companies  or  any  of  them,  and  to  defray  the  rea- 
sonable and  proper  expenses  thereof,  and  to  pay  the 
fees  of  counsel  with  whom  he  may  consult  in  the  dis- 
charge of  his  duties  as  Receiver,  and  also  to  pay  all 
reasonable  fees  and  legal  expenses  incurred  by  the  par- 
ties to  the  present  suit  up  to  the  date  of  his  appoint- 
ment. 

VI.  To  protect  and  preserve  the  franchises  of  the 
said  Company,  and  to  do  whatever  may  be  needful  and 
lawful  for  that  purpose  and  for  maintaining  the  ad  in- 
terim corporate  organization  of  the  said  Company,  and 
to  defray  the  necessary  and  proper  expenses  thereof: 
and  in  all  and  singular  the  premises  the  said  Receiver 
shall  be  subject  to  such  orders  and  directions  as  this 
Court  may  from  time  to  time  make  in  the  premises, 
and  for  which  the  said  Receiver  may  apply  as  he  shall 
be  advised.  The  said  Receiver  shall  keep  full,  particu- 
lar, and  accurate  accounts  of  all  the  earnings,  revenue, 
and  income  of  the  said  railroad,  and  of  all  expendi- 
tures made  by  him  in  performance  of  the  duties  of  his 
Baid  office,  and  shall  preserve  vouchers  therefor  ;  and 
lie  shall  once  in  every  months,  and  oftencr  if  re- 

quired, file  with  the  Clerk  of  this  Court  a  true  and 
particular  account  of  all  such  receipta  and  disburse- 
ments. 


APPENDIX   OF   FORMS.  291 

He  shall  keep  all  money  received  by  him  on  deposit 
in  one  or  more  banks  of  good  credit,  subject  to  bis 
order  and  to  be  drawn  therefrom  on  his  check  only 
for  the  proper  purposes  of  the  said  receivership,  and 
all-sums  not  required  for  making  such  payments  shall 
be  safely  kept  subject  to  the  further  order  of  this 
Court. 

The  said  Receiver  shall  be  paid,  so  long  as  he  shall 
faithfully  discharge  his  duty,  at  the  rate  of 
thousand  dollars  per  annum  in  full  for  all  services. 

And  it  is  hereby  further  ordered  that  the  said  IS". 
0.  and  C.  Railroad  Company  and  all  the  officers  and 
agents  thereof  shall  deliver  up  and  render  to  the 
said  Receiver,  upon  his  qualification  as  aforesaid,  all 
and  singular  the  premises  whereof  he  is  appointed 
receiver  as  aforesaid. 

And  it  is  finally  ordered  that  before  the  said  Re- 
ceiver shall  enter  upon  the  duties  of  his  office  he  shall 
file  a  bond,  with  two  or  more  sureties,  to  be  approved 
by  this  Court  or  one  of  the  Judges  thereof,  conditioned 
for  the  faithful  performance  of  his  duties  as  such  Re- 
ceiver. 


202  APPENDIX    OF    FORMS. 

II. 

Order  Appointing  Receiver  of  Railroad  Company  in  a 
Foreclosure  Suit.  r 

It  is  ordered  by  the  Court : 

First— That  C.  L.  P.,  of  Xew  York,  and  H.  F., 
of  Lynchburg,  Va.,  be  and  they  are  hereby  appointed 
joint  receivers  of  all  and  singular  the  mortgaged 
premises  specified  and  described  in  the  deed  of  trust 
referred  to  in  the  plaintiff's  bill  of  complaint,  includ- 
ing the  entire  line  of  railroad  therein  mentioned  ;  all 
and  singular  the  franchises,  lands,  tenements  and  here- 
ditaments of  the  said  defendant  company  ;  all  and 
singular  the  books,  papers,  and  records  thereof;  all 
and  singular  the  rolling  stock,  tools,  machinery,  en- 
gines, and  all  the  personal  property  of  every  kind  and 
description  of  the  said  company. 

Second.— That  the  said  receivers,  before  .entering 
upon  the  performance  of  their  duties  as  such  under 
this  order,  do  each  of  them  severally  execute  a  bond, 
with  sureties,  to  be  approved  as  to  form  and  suffi- 
ciency by  a  judge  of  this  Court,  and  filed  with  the 
clerk  thereof,  in  the  sum  of  $100,000,  for  the  faithful 
discharge  of  his  duties  in  the  premises. 

7TA?W.— That  upon  filing  of  such  bonds  the  said  re- 
ceivers proceed  to  take  possession  of  all  and  singular 
the  premises  whereof  they  an-  hereby  appointed  re- 
ceivers; that  they  continue  to  run  and  operate  the 
said  railroad  of  the  defendant  as  the  same  is  now  ope- 
rated for  the  common  carriage  of  freight  and    pas  sen- 


APPENDIX   OF    FORMS.  293 

gers,  keeping  the  premises  and  property  both  real  and 
personal  in  good  condition  and  repair,  to  the  end  that 
said  road  may  be  operated  efficiently  and  with  safety 
to  the  public;  that  they  as  such  receivers  have  au- 
thority to  employ,  pay  and  discharge  from  time  to 
time,  in  their  discretion,  all  needful  laborers,  servants, 
agents,  attorneys  and  counsel ;  to  purchase  and  pay  for 
all  needful  materials  and  supplies;  to  settle  and  adjust 
with  other  roads  all  traffic  balances  in  the  usual  course 
of  business;  to  make  from  time  to  time,  in  their  best  dis- 
cretion, all  needful  and  proper  traffic  arrangements  with 
other  roads  for  the  interchange  of  business;  to  pay  all 
taxes  on  the  property  whereof  they  are  appointed  re- 
ceivers that  may  be  due  and  pa}Table  or  become  due  and 
payable  during  their  receivership  ;  to  prosecute  and  de- 
fend without  the  further  order  of  this  Court  all  existing 
actions  by  or  against  said  company ;  and  to  defend  all 
actions  that  may  hereafter  be  brought  against  the  said 
company  or  against  themselves  as  such  receivers,  by  the 
permission  of  this  Court,  and  to  pay  the  expenses  of 
such  prosecution  and  defence,  and  also  the  expenses 
and  disbursements  of  the  plaintiffs,  trustees  in  and 
about  the  appointment  of  said  receivers ;  to  use  the 
name  of  said  company  in  the  prosecution  of  all  such  ac- 
tions as  they  ma}r  find  it  proper  and  necessaiy,  in  their 
discretion,  to  bring,  maintain  or  defend,  with  full 
power  to  compromise,  adjust  and  settle,  in  their  best 
discretion,  all  such  actions,  suits  or  controversies  now 
existing  or  that  may  hereafter  arise;  to  do  whatever 
may  be  needful  and  proper  to  maintain  and  preserve 
the  corporate  organization  and  franchises  of  the  com- 


294  APPENDIX   OF   FORMS. 

pany  until  the  further  order  of  this  court,  and  to  pay 
and  expend  such  sum,  and  no  more,  for  that  purpose 
as  may  he  hereafter  on  application  and  hearing  ordered 
by  this  Court;  to  redeem  any  and  all  securities  now- 
pledged  as  security  for  loans  of  money,  if  any  there  be, 
if  it  shall  be  for  the  interest  of  the  trust  hereby  re- 
posed in  the  said  receivers  so  to  do,  but  not  otherwise. 
Fourth. — It  is  further  ordered  that  as  soon  as  may 
be  after  the  said  receivers  have  entered  upon  the  per- 
formance of  their  duty,  they  make  a  true,  full  and  per- 
fect inventory  of  all  and  singular  the  real  and  personal 
property  of  every  kind  and  description  whereof  they 
are  appointed  receivers  and  which  may  come  into  their 
possession,  and  file  the  same  with  the  clerk  of  this 
Court,  and  due  notice  of  such  filing  to  be  given  to  the 
plaintiff's  solicitors.  That  the  said  receivers  do  keep 
full,  true  and  accurate  accounts  of  all  and  singular 
their  acts  and  doings  in  the  premises;  that  they  ren- 
der and  tile  with  the  clerk  of  the  Circuit  Court  of  the 
United  States  for  District  of 

such  account  within  ten  days  after  the  expiration  of 
every  month  of  their  receivership,  and  serve  copies 
thereof  upon  the  plaintiff's  solicitors,  and  that  they 
have  liberty  to  pass  their  accounts  from  time  to  time 
before  M.  F.,  who  is  hereby  appointed  a  master  for 
that  purpose,  on  ten  days'  notice  to  the  plaintiff's 
solicitors  after  the  service  on  them  of  such  copy 
thereof;  that  any  questions  which  may  arise  on  such 
accounting  lie  reported  to  this  court  for  examina- 
tion and  decision,  and  that  such  accounting,  when 
from  time  to  time  had  ami  completed,  shall  he  final 


APPENDIX   OF   FORMS.  295 

and  conclusive  upon  all  parties,  unless  on  clue  cause 
shown  the  same  shall,  during  the  pendency  of  this 
action,  be  opened  on  special  application. 

Fifth. — It  is  further  ordered  that  all  moneys  com- 
ing into  the  hands  of  said  receivers  or  either  of  them 
be  by  them  deposited  in  one  or  more  safe  banks  of 
deposit,  to  be  approved  by  this  Court  or  a  judge 
thereof,  to  the  joint  credit  of  the  receivers,  to  be 
by  them  drawn  out  on  their  joint  order  or  on  the 
order  of  an  agent  or  attorney  to  be  by  them  agreed 
upon.  It  is  further  ordered  that  the  said  receivers, 
exercising  due  prudence  and  caution  in  the  selection 
thereof,  shall  not  be  responsible  for  the  wrongful  acts 
of  their  servants  and  agents.  It  is  further  ordered, 
that  the  said  receivers  shall  not,  nor  shall  either  of 
them,  in  any  case  incur  any  personal  or  individual 
liability  in  the  operation  of  the  said  line  of  railroad 
or  otherwise  in  the  premises  by  reason  of  any  act 
or  thing  done  by  them  or  either  of  them  as.  re- 
ceivers, or  by  their  servants,  agents  or  attorneys,  the 
said  receivers  respectively  acting  in  good  faith  and  in 
the  exercise  of  their  best  discretion  ;  but  the  mort- 
gaged premises  shall  nevertheless  be  chargeable  with 
any  judgment  which  maybe  established  against  the 
receivers  in  any  action  brought  against  them  by  any 
person  under  leave  of  this  Court  first  had  and  obtained. 
It  is  further  ordered  that  the  said  receivers  respect- 
ively shall  in  no  case  be  responsible  for  the  acts  of 
each  other,  but  shall  be  responsible  only  severally  each 
for  his  own  acts. 

Sixth.— -It  is  further  ordered  that  all  applications 


296  APPENDIX    OF   FORMS. 

for  interlocutory  order  or  relief  in  this  action,  by  or  on 
behalf  of  any  party  thereto  or  the  receivers  therein, 
shall  be  made  on  notice  by  the  moving  party  to  the 
party  or  parties  of  at  least  ten  days  exclusive  of  the 
day  of  service,  and  on  due  proof  of  personal  service  of 
notice,  unless  the  notice  hereby  required  be  waived  in 
writing. 

Seventh. — It  is  further  ordered  that  the  said  defend- 
ants and  all  persons  whatsoever  be  and  they  are  hereby 
strictly  commanded  and  enjoined  peacefully  to  deliver 
up  and  surrender  to  the  said  receivers  all  and  singular 
the  premises  whereof  they  are  hereby  appointed  re- 
ceivers, under  the  penalty  attaching  by  law  to  disobe- 
dience. And  in  the  mean  time,  and  until  the  actual 
taking  possession  of  the  said  property  by  the  said  re- 
ceivers, it  is  ordered  that  the  said  A.,  M.,  and  0.  Rail- 
road Company,  its  president,  officers,  agents  and  attor- 
nej's,  be  and  they  are  hereby  enjoined  and  restrained 
from  disposing  of  or  parting  with  any  of  the  said 
property,  real  or  personal,  except  in  the  payment 
of  the  necessary  daily  expenses  of  said  road,  and  that 
the  said  company  forthwith  deposit  all  moneys  and 
available  balances  now  in  its  possession  or  control 
and  which  comes  into  its  possession  from  day  to  day, 
except  what  is  needed  for  the  said  necessary  expenses, 
in  the  A.  National  Bank  of  N.,  subject  to  the  order 
of  this  Court  in  this  cause. 


APPENDIX   OF   FORMS.  297 

III. 

Receiver  of  Heal  and  Personal  Estate  of  Decedent. 

It  is  ordered  and  decreed,  that  A.  B.  be  appointed 
receiver,  upon  his  giving  security,  of  the  rents  and 
profits  of  the  real  estates  (freehold  and  leasehold),  and 
to  collect  and  get  in  the  outstanding  personal  estate 
of  C.  D.,  the  testator  (or  intestate)  in  the  pleadings 
mentioned.  And  the  tenants  of  the  said  real  estate 
are  to  attorn  and  pay  their  rents  in  arrear  and  growing 
rents  to  such  receiver.  And  it  is  further  ordered  that 
E.  and  F.,  the  executors  of  the  will  of  the  testator  (or 
the  administrators  of  the  effects  of  the  intestate),  de- 
liver over  to  such  receiver  all  securities  in  their  hands 
for  such  outstanding  personal  estate,  together  with  all 
books  and  papers  relating  thereto.  And  it  is  further 
ordered  that  the  receiver  from  time  to  time  do  pass 
his  accounts,  and  pay  the  balances  which  shall  be 
certified  to  be  due  from  him,  into  the  bank  of  Z.  to 
the  credit  of  this  cause  (or  into  the  Registry  of  the 
court  to  the  credit  of  this  cause). 

IV. 

Order  Appointing  Party  to  a  Cause  Receiver  to  Act 
Without  Salary  or  Security. 

It  is  ordered  that  A.  B.  be  at  liberty  to  propose 
himself  as  such  receiver  without  giving  security,  he 
undertaking  to  act  without  salary  in  case  he  shall  be 
appointed. 


298  APPENDIX   OF   FORMS. 

V. 

Order  Requiring  Tenant  to  Attorn  and  Pay  Bent 
and  Arrears. 

Upon  consideration  of  the  orders  heretofore  made 
in  this  cause,  whereby  it  appears  that  A.  B.  has  been 
duty  appointed  receiver  of  etc. ;  and  an  affidavit  of 
the  said  A.  13.  and  of  C.  D.,  filed  of  personal  service 
of  the  said  order,  and  of  notice  in  writing  signed  by 
the  said  A.  B.  and  E.  F.,  requiring  the  said  E.  F.  to 
attorn  to  him  as  such  receiver,  for  the  [describe  the 
property]  occupied  by  the  said  E.  F.,  situate  at 
being  part  of  the  said  estates,  and  to  pay  his  rent  in 
arrear  and  growing  rent  for  the  same  to  the  said  re- 
ceiver; and  of  the  said  E.  F.'s  refusal  [or  neglect]  to 
attorn  to  and  become  the  tenant  of  the  said  receiver, 
or  to  pay  any  rent  to  him,  and  an  affidavit  of  G.  filed 
of  notice  of  this  motion  to  the  said  E.  F. ;  let  the 
said  E.  F.,  within  eight  days  after  service  of  the  order, 
attorn  to  and  become  the  tenant  of  the  said  A.  B.,  the 
receiver  appointed  in  this  cause  in  respect  of  the 
etc.,  occupied  by  the  said  E.  F.,  situate  at  part 

of  the  estate  etc. 

VI. 

Receiver  to  Distrain. 

Let  C,  the  receiver  of  the  rents  and  profits  of  the 
estates  of  etc.,  be  at  liberty  to  distrain  upon  the  goods 
and  chattels  of  the  several  tenants  named  in  the  said 
affidavit,  for  the  several   amounts  of  rent  due  and 


APPENDIX   OF   FORMS.  299 

owing  from  the  said  tenants;  and  let  such  distraints 
be  made  in  the  name  of  the  defendant  A.,  in  whom 
the  legal  estate  in  the  said  etc.  is  vested. 


VII. 

Receiver  to  Bring  Action  for  Rent,  and  Tenants  to 
Attorn. 

Let  etc.,  the  receiver  of  the  rents  and  profits  of 
the  charity  lands  in  etc.,  be  at  liberty,  in  the  names 
of  the  defendants,  to  bring  actions  in  the  [proper 
court],  against  the  several  persons  named  in  his  said 
affidavit,  for  recovery  of  the  arrears  of  rent  due  from 
them  respectively  to  the  said  charity  ;  and  let  E.  etc., 
in  the  said  affidavit  named,  who  are  respectively  in 
possession  of  part  of  the  said  estates  respectively  [If 
on  notice,  on  or  before  etc.,  or  within  etc.],  attorn  as 
tenants  to  the  said  receiver. 

yiii. 

Inquiry  as  to  Cutting  Timber,  with  Consequent 
Directions. 

Let  an  inquiry  be  made,  whether  there  are  any  and 
what  timber  or  other  trees  standing  or  growing  on  the 
estates  etc.,  which  are  fit  to  be  cut  down  ;  and  let  such 
timber  and  other  trees  as  shall  appear  to  be  fit  to  be 
cut  down,  be  cut  down  and  sold  with  the  approbation 
of  the  judge;  and  let  a  proper  person,  upon  his  giving 
security,  be  appointed  to  receive  the  proceeds  of  such 
sale ;  and  be  at  liberty  to  pay  and  retain  thereout  such 


300  APPENDIX   OF   FORMS. 

costs,  charges,  and  expenses  of  surveying,  valuing 
and  selling  such  timber  and  other  trees  as  the  judge 
shall  allow  ;  and  let  such  persons  within  (14  days)  after 
the  date  of  the  chief  clerk's  certificate,  or  such  other 
time  as  shall  he  thereby  appointed,  pay  the  residue  of 
the  proceeds  of  such  sale  into  the  bank,  to  the  cred.t 
of  this  cause  \_If  so,  to  an  account  to  be  entitled  etc.], 
subject  etc. 

IX. 

Receiver  to  Cut  and  Sell  Timber. 

Let  W.,  the  receiver  appointed  in  this  cause,  be  at 
liberty  to  cut  down  the  timber  and  other  trees  men- 
tioned in  the  affidavit  of  etc.,  filed,  etc.,  and  to  sell  the 
same,  and  include  the  proceeds  thereof  in  his  accounts 
as  such  receiver ;  and  let  the  said  receiver  pay  and  re- 
tain out  of  such  proceeds  the  costs,  charges,  and  ex- 
penses of  the  applicants  properly  incurred  of  this 
application,  and  of  cutting  doAvn  and  selling  the  said 
timber  and  other  trees,  such  costs,  charges  and  ex- 
penses to  be  ascertained  by  the  chief  clerk  to  the  judge 
and  allowed  the  receiver  in  his  accounts. 

X. 

Receiver  and  Manager  of  Testator's  Mines  and  Realty. 

Let  a  proper  person  be  appointed  to  manage,  carry 
on,  and  work  the  mines  devised  by  the  will  of  IT.,  the 
testator  iti  the  pleadings  named,  and  to  raise,  get,  and 
dispose  of  the  coal,  iron-stone,  quarry-stone,  and  other 


APPENDIX    OF   FORMS.  301 

minerals  from  the  said  mines,  and  to  receive  the  pro- 
duce of  such  sales,  and  the  rents  and  profits  of  the  said 
mines,  and  pay  and  discharge  the  current  expenses 
and  charges  of  working  the  same,  and  to  receive  the 
rents  and  profits  of  the  lands  (and  hereditaments)  in 
or  under  which  the  said  mines  are  now  lying  or  being, 
and  to  collect  and  get  in  the  outstanding  debts  belong- 
ing to  the  said  business.  And  the  tenants  of  the 
said  lands  are  to  attorn  etc. ;  and  let  defendants  etc. 
deliver  up  the  possession  of  the  said  mines  to  such 
manager  and  receiver  as  form  etc. ;  and  also  all  secu- 
rities in  their  hands  in  respect  of  such  outstanding 
debts,  and  the  stock,  goods,  effects,  and  accounts 
belonging  to  the  said  mining  business.  [Direction  to 
pass  accounts  and  pay  in  balances.] 

XI. 

Receiver  and  Manager  of  Testator's  Business. 

Let  a  proper  person  be  appointed  to  collect,  get  in, 
and  receive  the  debts  now  due  and  outstanding, 
belonging  to  the  trade  or  business  in  the  pleadings 
mentioned,  carried  on  by  the  testator,  and  since  by 
the  defendants  M.  and  C.  and  by  the  defendant  M.,  and, 
out  of  the  first  moneys  to  be  received,  to  pay  the  debts 
due  from  the  said  trade  or  business,  and  to  manage  the 
same  until  the  sale  thereof;  and  let  the  plaintiffs  and 
defendants  deliver  over  to  such  person  all  the  stock  in 
trade,  goods,  effects,  books,  and  accounts  belonging  to 
the  said  business.  [Direction  to  pass  accounts  and  pay 
in  balances.] 


302  APPENDIX   OF   FORMS. 

XII. 

Receiver  of  Leasehold  and  Partnership. 

Let  a  proper  person  be  appointed  to  receive  the 
rents  and  profits  of  the  leasehold  hereditaments  in  the 
pleadings  mentioned  (other  than  the  house  in  which 
the  defendant  resides),  and  also  to  receive  and  get  in 
the  debts  and  effects  of  the  partnership  in  the  plead- 
ings mentioned;  tenants  to  attorn;  plaintiffs  and 
defendant  to  deliver  to  receiver  all  partnership  effects 
and  securities  in  their  hands  for  outstanding  partner- 
ship estates,  and  books  and  papers  relating  thereto; 
out  of  the  money  to  be  received  in  respect  of  the  rents, 
debts  and  effects,  receiver  to  pay  the  ground-rents, 
and  debts  due  and  to  become  due  from  the  partner- 
ship, and  to  pass  accounts  and  pay  in  balances. 

XIII. 

Receiver  and  Manager  of  Partnership  Business. 

Let  a  proper  person  or  persons  be  appointed,  either 
jointly  or  separately,  to  collect,  get  in,  and  receive 
the  debts  now  due  and  outstanding,  and  other  assets, 
property,  or  effects  belonging  to  the  said  partnership 
business  of  etc.  at  etc.,  and  out  of  the  first  moneys 
to  be  received  to  pay  the  debts  due  from  the  said 
business,  and  to  manage  the  same  so  far  as  relates  to 
any  contract  subsisting  on  the  day  of 

and  either  of  the  parties  is  to  be  at  liberty  to  propose 
himself  as  such  receiver  and  manager,  to  act  without 
salary.     And  let  the  plaintiff  and  defendant  deliver 


APPENDIX    OF   FORMS.  303 

over  to  the  person  or  persons  so  appointed,  all  the 
stock  in  trade  and  effects  of  the  said  partnership,  and 
also  all  securities  in  their  or  either  of  their  hands, 
for  such  outstanding  partnership  estate,  together  with 
all  books  and  papers  relating  thereto.  [Direction  that 
all  the  partnership  property  and  effects,  other  than 
stock  in  trade  and  the  good  will  of  the  partnership, 
be  sold,  either  as  a  going  concern  or  otherwise  as  the 
judge  shall  direct,  and  either  of  the  parties  not  having 
the  conduct  of  such  sale  to  be  at  liberty  to  bid. 
Liberty  to  apply  in  chambers  as  to  the  payment  of 
any  liabilities  of  the  partnership  prior  to  the  appoint- 
ment of  such  receiver  and  manager  or  receivers  and 
managers.] 

XIV. 

Manager  and  Receiver  of  Partnership  Colliery. 

And  let  a  proper  person  be  appointed  to  take  and 
have  the  management  of  the  partnership  colliery, 
stock,  and  effects  in  the  mean  time,  and  until  a  sale 
thereof  as  aforesaid,  and  to  have  the  direction  and 
superintendence  of  the  work  of  the  said  partnership 
business,  and  to  collect  and  get  in  the  outstanding 
debts  and  effects  belonging  to  the  said  partnership,  and 
any  of  the  defendants  are  to  be  at  liberty  to  propose 
themselves  as  such  manager  and  receiver.  And  let 
the  plaintiff  and  defendant  deliver  over  to  such  mana- 
ger and  receiver  all  securities  in  their  hands  for  such 
outstanding  partnership  debts  and  effects,  together 
with  all  the  stock,  goods,  effects,  books,  and  accounts 


304  APPENDIX   OF    FORMS. 

belonging  to  the  said  partnership.  And  in  case  it 
shall  be  necessary  to  put  any  of  the  debts  in  suit  for 
the  recovery  thereof,  the  same  is  to  be  done  with 
the  approbation  of  the  judge.  And  the  person  so  to 
be  appointed  is  to  be  at  liberty  to  make  use  of  the 
names  of  the  said  plaintiff  and  defendants,  who  are  to 
be  indemnified  therein  out  of  the  stock,  goods,  and 
effects  of  the  said  partnership,  and  out  of  the  money 
to  be  received  in  respect  of  the  said  debts,  by  such 
manager  and  receiver.  And  let  him  pay  the  debts 
due  and  to  accrue  due  from  the  said  partnership  and 
from  time  to  time  pass  his  accounts,  and  after  retain- 
ing in  his  hands  such  sums  as  shall  be  deemed  suffi- 
cient for  carrying  on  the  said  colliery,  pay  the  balances 
that  shall  from  time  to  time  be  certified  to  be  due 
from  him  into  the  bank,  etc. 

XV. 

Receiver  to  Repair  Hereditaments. 

Let  the  receiver  appointed  etc.  be  at  liberty  to  ex- 
pend a  sum  not  exceeding  dollars  in  the  repair 
of  the  hereditaments  at  etc.,  part  of  the  estates  in 
question  in  this  cause,  such  repairs  to  be  done  accord- 
ing to  the  specification  and  plan  marked  A.  in  the 
affidavit  of  M.  (surveyor)  referred  to,  and  to  the  satis- 
faction of  the  said  M.,  and  the  said  receiver  is  to  be 
allowed  what  he  shall  so  expend  in  passing  his  ac- 
counts. 


GENERAL  INDEX. 


ABATEMENT, 

of  rents  of  tenants  by  receiver,  213. 

of  suit  does  not  suspend  the  authority  of  a  receiver,  205. 

ACCOUNTANT  TO  THE  CROWN, 

cannot  be  receiver,  143. 

ACCOUNTS, 

form  of  receiver's,  247,  248. 

delivery  of,  247. 

mode  of  passing,  247,  248. 

how  to  compel  the  leaving  and  passing,  248,  249. 

parties  interested  may  attend  passing,  249. 

entitled  to  copies  of,  250,  251. 
allowance  of,  251,  252. 

certificate  of,  252,  253. 
receiver  neglecting  to  leave  or  pass,  must  pay  interest  on  the 

balance,  and  will  lose  his  salary,  254,  255,  256. 
receiver  ordered  to  pass,  although  bill  has  been  dismissed,  256. 
of  deceased  receiver,  259,  260. 

as  to  passing,  with  infants  after  coming  of  age,  258,  268. 
as  to  opening,  with  a  ward  of  court,  231. 

ACQUIESCENCE, 

a  bar  to  the  appointment  of  a  receiver,  11. 

ACTION  AT  LAW.    See  Damages. 

receiver  should  not  bring  or  defend,  without  leave,  206,  207, 

215,  216. 
receiver's  right  to  bring,  subject  to  two  restrictions,  206. 
must  be  in  the  name  of  holder  of  legal  title,  206. 
may  be  brought  in  receiver's  name  if  specially  authorized,  207. 
cannot  be  brought  by  receiver  outside  the  jurisdiction,  168,  207. 
except  where  legal  title  is  vested  in  him,  207. 
cannot  be  brought  against  receiver  without  leave,  208. 
for  double  rent  or  double  yearly  value,  215. 
20 


30G  GENERAL   INDEX. 

ADMINISTRATION.     See  Probate. 

decree,  receiver  appointed  after,  in  suit  commenced  by  sum- 
mons, 145. 

ADMINISTRATOR.     See  Executors. 

receiver  appointed  against,  of  foreigner,  at  suit  of  one  of  next 

of  kin,  pending  proceedings  abroad,  28. 
receiver  appointed  at  suit  of.  against  a  judge  in  a  colony  who 

claimed  to  be  official  administrator  of  a  person  who  had  died 

there,  37. 

AFFIDAVITS, 

on  application  for  receiver,  154, 155. 
verifying  the  accounts,  251. 

ALLOWANCES.     See  Salary. 

to  a  receiver,  236,  237,  238,  239,  241,  242. 

for  extraordinary  trouble,  &c,  241,  242. 
not  made,  if  accounts  are  not  passed,  245,  256,  257,  258. 
for  repairs,  218,  245. 
of  manager  of  a  West  India  estate,  285. 

ANNUITY, 

receiver  appointed  of  arrears  of,  11. 

ANSWER, 

receiver  appointed  before,  146. 

APPEAL, 

lies  from  an  interlocutory  order  in  England,  149. 

not  in  the  United  States  courts,  149. 

as  to,  from  orders  appointing  or  discharging  receivers,  149,150. 

APPEARANCE, 

receiver  appointed  before,  147,  148. 

APPOINTMENT  OF  RECEIVER, 

general  ol>ject  of  the,  3. 

B  matter  for  the  discretion  of  the  court,  3,  4,  5,  6. 

rule-  regulating,  LO. 

,■ l ii<  t  <if  party  who  seeks  the,  looked  to  en  the  application,  11. 

order  for,  not  made  on  subrai8Bi< f  defendant,  14. 

pending  litigation  in  a  foreign  court,  L3,  28,  38. 
must  lie  in  a  suit.  1  II.  I  I ■<. 

except  ion     mi,  i  i."). 
maj  be  made  in  a  Bail  commenced  by  Bummone,  L45. 


GENERAL    INDEX.  307 

APPOINTMENT  OF  EECEIVER—  Continued. 

when  application  for,  should  be  made  in  chambers,  145. 

is  made  on  motion  or  petition,  146. 

application  for,  by  defendant,  should  be  on  petition,  146. 

may  be  made  before  answer,  146. 

application  for,  should  be  made  on  notice,  147. 

exceptions,  148,  149,  155. 
application  for,  may  be  made  at  any  stage  of  the  suit,  149,  150, 

151,  152. 
before  decree  not  made,  unless  prayed  for,  150. 
made  at  hearing,  though  not  prayed  for,  150. 
may  be  made  after  decree,  though  not  prayed  for,  150,  151. 
when  made  on  application  of  defendant,  153,  154. 
on  bill  pro  confesso,  159,  160. 
costs  of  motion  for,  15. 
completion  of,  165,  166,  167. 
certificate  of,  166. 

costs  of,  to  be  paid  by  receiver,  166,  167,  229. 
effect  of,  168,  169,  170,  176,  177. 
operates  as  an  injunction,  13,  90,  91,  92. 
right  not  affected  by,  170,  171,  174. 
parties  in  possession  having  paramount  claims,  not  affected  by, 

183. 
parties  not  in  possession  having  paramount  claims,  may  obtain 

leave  to  enforce  them  notwithstanding  the,  183, 184, 185,  186. 

ARREARS, 

of  annuity  may  be  a  ground  for  a  receiver,  11. 
of  rent-charge  may  be  a  ground  for  a  receiver,  11. 
of  interest,  a  ground  for  a  receiver  at  suit  of  equitable  mort- 
gagee, 11. 

or  second  or  puisne^  mortgagee,  51. 
of  rents,  receiver  entitled  to,  200,  201. 

receiver  cannot  forgive  tenants,  213. 

ATTACHMENT, 

against  receiver  for  not  accounting,  255. 

against  third  persons  for  interfering  with  possession  of  receiver, 

177,  221. 
against  tenants  for  not  attorning,  199. 

ATTORNEY.    See  Solicitor. 

ATTORNMENT. 

of  tenant  to  receiver,  effect  of,  198,  202. 


308  GENERAL    INDEX. 

AUTHORITY, 

extent  of,  of  receiver,  222,  223. 

BAILIFF, 

cases  in  which  receiver  may  employ,  202. 

BALANCE, 

receiver  bound  forthwith  to  pay  in,  253. 

not  allowed  to  make  interest  on,  246. 
order  to  lodge  or  invest,  when  and  how  to  be  obtained,  239,  240, 
253,  254. 

BANKRUPT, 

receiver  will  be  discharged,  267. 

receiver,  sureties  allowed  to  attend  passing  accounts  of,  273. 

BANKRUPTCY, 

when  receiver  appointed  in  cases  of,  88,  89,  111,  112. 
not  unless  on  bill  filed,  145. 

when  receiver  appointed  in  cases  of,  under  the  act  of  Congress 
of  1867,  111. 

assignee  in,  liable  to  process  for  contempt  for  disturbing  posses- 
sion of  receiver,  177. 

BANKS, 

national,  receivers  of,  84,  179. 

BARRISTER, 

may  be  receiver,  142. 

BENEFICE, 

receiver  not  appointed  of  profits  of  ecclesiastical,  132,  133. 

CANONRY  IN  A  COLLEGIATE  CHURCH, 
receiver  appointed  of  profits  of,  132. 

CERTIFICATE, 

of  the  completion  of  the  appointment  of  receiver,  166. 
of  allowance  of  accounts,  252,  253. 

CHAMBERS, 

in  what  cases  application  for  receiver  may  be  made  in,  145. 
receiver  is  generally  nominated  in,  155,  156. 

CHIEF  CLERK, 

of  a  judge  cannot  be  a  receiver,  140. 


GENERAL   INDEX.  309 

COLLEGE  FELLOWSHIP, 

receiver  may  be  appointed  of  profits  of,  131,  132. 

COLONIES, 

receiver  appointed  of  property  in  the,  133,  134,  135. 
manager  of  property  in  the,  may  be  appointed,  280,  281. 

COMMITTAL, 

for  disturbance  of  receiver,  191,  192. 

of  receiver  for  not  obeying  the  order  of  the  court,  255. 

COMMISSIONS.     See  Allowances— Salary. 

COMPANIES, 

jurisdiction  of  courts  of  chancery  over,  80,  81  (note), 
receiver  appointed  over  tolls  of,  66,  67,  68. 

at  suit  of  mortgagee,  66,  67,  68,  69,  70,  71. 

form  of  order,  67,  71. 
at  suit  of  judgment  creditor,  72,  75. 
at  suit  of  statutory  bondholder,  78. 
judgment  creditor  may  have  a  receiver  of  tolls  of,  notwithstand- 
ing a  receiver  appointed  at  suit  of  mortgagees,  73. 
priorities  between  mortgagees  and  judgment  creditors  of,  72, 

73,  74,  75. 
statutory  bondholder  of,  as  distinguished  from  a  mortgagee,  77. 
mortgage  of  tolls  of,  what  it  conveys,  74. 
does  not  convey  the  lands  of  the,  74. 
judgment  creditor  may  not  take  the  chattels  and  rolling  stock 

of  railway,  76. 
rights  of  statutory  bondholder  of,  77,  78. 
priority  does  not  exist  between  mortgagees  of,  78,  79,  80. 
priority  in  favor  of  mortgagees  and  statutory  bondholders  of 

railway,  80 
receiver  appointed  of  chattels  of  railway,  71,  72. 
receivers  of,  under  statutes  in  the  United  States,  83,  84  (note), 
in  the  United  States,  80,  81,  82,  83,  84  (note), 
at  suit  of  holders  of  liens,  81  (note), 
at  suit  of  judgment  creditors,  81  (note). 
at  suit  of  general  creditor  or  stockholder,  82  (note), 
when  corporation  is  dissolved,  83  (note) . 

CONSIGNEE, 

appointment  of,  281. 
must  give  security,  282. 
who  may  be  appointed,  283. 


310  GENERAL    INDEX. 

CONSIGNEE—  Continued. 

mortgagee  of  West  India  estate  will  not  be  appointed,  143. 

not  answerable  for  orders  of  the  court,  283,  284. 

has  a  charge  on  the  property  for  payments  sanctioned  by  the 

court,  284. 
not  discharged  until  accounts  are  paid,  285,  286. 

CONTEMPT, 

interference  with  possession  of  a  receiver  is  a,  177,  178,  179, 

180,  181,  191,  192. 
may  be  punished  by  committal,  191,  192. 

usually  punished  by  making  the  party  pay  costs,  191,  192. 
party  in,  restrained  from  interfering  with  possession  of  receiver, 

191,  192. 
interference  by  sheriff  with  possession  of  receiver  a,  193. 
of  receiver  in  not  obeying  the  order  of  the  court,  255. 

CORPORATION.     See  Companies. 

receiver  appointed  of  property  of  municipal,  65. 
manager  of,  not  appointed,  278,  279. 

COSTS, 

of  motion  for  receiver,  15. 

of  appointment  of  receiver  are  paid  by  the  receiver,  and  cre- 
dited to  him  on  passing  his  accounts,  167,  250. 

what,  allowed  to  receiver,  239,  240,  241,  242. 

what,  not  allowed  to  receiver,  215,  216,  240,  241,  242. 

of  discharge,  when  receiver  entitled  to,  264. 

of  parties  attending  the  passing  of  the  accounts,  250. 

of  parties  claiming  under  a  title  paramount  to  the  receiver,  188. 

of  order  that  tenant  shall  pay  rents,  201. 

of  protecting  his  possession,  in  what  cases  tenant  entitled  to, 
216. 

of  four-day  order,  receiver  must  pay,  255. 

receiver  appointed  to  secure  payment  of,  87. 

party  in  contempt  for  disturbance  of  receiver  ordered  to  pay, 
191,  192. 

of  defending  actions  without  leave,  when  allowed,  240,  241. 

COURT  ROLLS, 

order  for  delivery  of,  to  receiver,  200. 

COVENANT, 

receiver  appointed  in  cases  of  breach  of,  87,  88,  89. 


GENERAL   INDEX.  311 

COVENANTOR  AND  COVENANTEE.     See  Covenant. 

CREDITORS, 

receiver  appointed  in  suits  by,  55,  56,  57. 
equitable  creditors,  58,  59,  60,  61. 
judgment  creditors,  61,  62,  63,  64,  65. 

DAMAGES, 

receiver  allowed  to  proceed  at  law  for,  against  a  party  who  had 
irregularly  put  a  writ  offi./a.  in  execution  against  him,  256 

DECREE, 

receiver  appointed  after,  150,  151. 

receiver  not  appointed  before,  unless  prayed  for,  150. 

pro  confesso,  receiver  appointed  after,  152,  160.  j. 

DEFENDANT, 

receiver  not  appointed  on  application  of,  38,  55,  153,  154. 
unless  in  special  cases,  and  after  decree,  153,  154. 

DEVISEE, 

of  real  estate,  receiver  not  appointed  against,  122. 

DISCHARGE  OF  RECEIVER, 
in  what  cases  unnecessary,  263. 
on  his  own  application,  264. 
on  satisfaction  of  incumbrances,  265. 
on  his  continuance  being  unnecessary,  266. 
causes  for,  267. 

over  estate  of  infant,  267,  268. 
of  estates  decreed  to  be  sold,  268. 
not  ordered,  until  balance  due  to  him  be  paid,  269. 

or  on  application  of  one  party  only,  269. 
mode  of  application  to,  269. 
service  of  application  to,  269,  270. 
order  to,  270. 
vacating  recognizance  on,  270,  271. 

DISTRESS, 

when  receiver  may  distrain,  202,  203,  204. 
when  receiver  should  apply  for  leave  to  distrain,  203,  204. 
application  for  leave  to  distrain,  how  made,  204. 
receiver  may  employ  a  bailiff  to  make  a,  202. 
abatement  of  suit  does  not  affect  power  of,  205. 
when  rescued,  205. 


312  GENERAL   INDEX. 

DISTURBANCE, 

of  a  receiver,  what  constitutes,  181,  182,  183. 
may  be  punished  by  committal,  191. 
how  in  general  punished,  191,  192. 

DUTY  OF  RECEIVERS, 

to  require  parties  to  deliver  up  possession,  197,  198. 

to  require  tenants  to  attorn,  198,  199,  200. 

to  take  proper  receipts,  202. 

over  personal  property,  205,  206. 

not  to  institute  proceedings  without  leave,  206,  207,  216. 

as  to  letting  estates,  209,  210,  211. 

not  to  involve  the  estate  in  expense,  216. 

•not  to  defend  actions  at  law  without  leave,  216. 

over  leaseholds,  220,  221. 

not  to  interfere  between  the  parties,  221. 

not  to  petition  or  originate  proceedings  in  the  cause,  222,  223. 

when  tenants  are  interfered  with,  221. 

EAST  INDIES, 

receiver  of  estates  in,  133. 

ECCLESIASTICAL  BENEFICE, 

receiver  not  appointed  of  profits  of,  132,  133. 

ECCLESIASTICAL  COURT, 

appointment  of  receiver  pending  proceedings  in,  28,  29,  30,  31. 

EJECTMENT, 

receiver  cannot  bring,  without  leave,  216. 

cannot  be  brought  against  the  receiver  without  leave,  183. 

when  leave  will  be  given  to  bring,  against  receiver,  185. 

ELECTIONS. 

receiver  appointed  in  cases  of  contested,  129. 

ELEGIT  CREDITOR.     See  Judgment  Creditors. 
receiver  appointed  at  suit  of,  63,  64,  72, 128. 
may  obtain  leave  to  sue  out  his  elegit  against  property  in  pos- 
session of  a  receiver,  188. 

ENTRY  AND  DISTRESS, 

receiver  not  appointed,  where  the  party  or  a  trustee  for  him 
has  the  power  of.  41,  42. 
unless  a  special  case  be  made  out,  43,  44. 


GENERAL   INDEX.  313 

EQUITABLE  CREDITORS, 

receiver  appointed  at  suit  of,  58,  59,  60,  61. 

EQUITABLE  ESTATE, 

persoD  having  an,  when  entitled  to  a  receiver,  8,  9,  11,  53,  54, 
124,  125, 126,  127. 

EQUITABLE  MORTGAGEE, 

receiver  appointed  at  suit  of,  11,  53,  54,  126,  127. 

EVIDENCE, 

on  motion  for  receiver,  154,  155. 

EXECUTION, 

by  fi.  fa.  against  receiver  for  non-payment  of  balance  is  im- 
proper, 256. 

EXECUTION  CREDITOR, 

receiver  appointed  at  suit  of,  64,  65, 128. 
may  obtain  leave  to  levy  on  property,  notwithstanding  the  pos- 
session of  a  receiver,  187,  188. 

EXECUTORS.    See  Trustee. 

receiver  not  in  general  appointed  against,  18,  19,  20. 

in  what  cases  a  receiver  appointed  against,  20,  21,  22,  23,  24, 

25,  26,  27,  28. 
of  deceased  receiver  may  apply  for  leave  to  pass  his  accounts, 

259. 

FELLOWSHIP, 

in  a  college,  receiver  may  be  appointed  of,  131,  132. 

FOREIGN  CORPORATIONS, 

appointment  of  receiver  of  funds  of,  68  (note). 

FOREIGN  COUNTRIES, 

receiver  may  be  appointed  of  property  in,  133,  134. 
manager  may  be  appointed  of  estates  in,  280,  281. 
leases  by  receiver  of  estates  in,  212. 

FOREIGN  COURT, 

appointment  of  receiver  pending  litigation  in,  13,  28,  37. 

FORMS, 

order  appointing  receiver  of  a  railroad  company,  287,  288,  289, 
290,  291. 


314  GENERAL   INDEX. 

FOBMS—  Continued. 

similar  order  in  a  foreclosure  suit,  292,  293,  294,  295,  296. 
order  for  receiver  of  real  and  personal  estate  of  decedent,  297. 

appointing  party  in  a  cause  receiver  without  salary  or 
security,  297,  298. 

requiring  tenant  to  attorn  and  pay  rent  in  arrear,  298. 

for  receiver  to  distrain,  298,  299. 

for  receiver  to  bring  action  for  rent,  299. 

for  inquiry  as  to  cutting  timber,  299,  300. 

for  receiver  to  cut  and  sell  timber,  300. 

for  receiver  and  manager  of  testator's  mines  and  realty, 
300,  301. 

for  receiver  and  manager  of  testator's  business,  301. 

for  receiver  of  leasehold  and  partnership,  302. 

for  receiver  and  manager  of  partnership  business,  302,  303. 

for  manager  and  receiver  of  partnership  colliery,  303,  304. 

for  receiver  to  repair  hereditaments,  304. 

FRAUD, 

receiver  appointed  in  cases  of,  82,  83,  84,  85,  125. 

receiver  and  consignees  may  be  sued  on  the  ground  of,  230,  231. 

GUARDIAN, 

receiver  of  estate  of  infant  appointed,  though  there  be  a,  17, 18. 
same  person  may  be  appointed  receiver  and,  144. 

HEAD  RENT, 

should  be  paid  by  receiver,  220 
consequences  of  receiver  not  paying,  220. 

HEARING, 

receiver  appointed  at  the,  150. 

HEIR  AT  LAW, 

receiver  not  appointed  against,  at  suit  of  devisee,  120, 121, 122. 
unless  in  special  cases,  120,  125. 

EEIRLOOMS, 

receiver  of,  130. 

INCUMBRANCERS, 

possession  of  receiver,  how  far  for  benefit  of,  173,  174. 
right  of  prior,  to  apply  to  the  receiver,  174. 
prior,  must   apply  to  the  court  for  leave  to  proceed  against 
receiver,  184,  185. 


GENERAL   INDEX.  315 

INCUMBRANCERS— Continued. 

proceedings  by  prior,  185,  186. 
proceedings  by  subsequent,  60. 

who  make  out  their  claim  have  a  right  to  have  the  rents  and 
profits  applied  by  the  receiver  in  discharge  of  their  claim,  189. 

INFANT, 

receiver  appointed  over  estate  of,  16, 17,  18. 

notwithstanding  there  be  a  testamentary  guardian,  17. 

not  unless  a  bill  be  filed,  144. 
receiver  passing  accounts  with,  immediately  on  their  coming  of 

age,  231,  258,  268. 
recognizance  of  receiver  ought  not  to  be  vacated,  till  one  year 

after  coming  of  age  of,  268. 

INJUNCTION, 

appointment  of  receiver  operates  as,  13,  91,  92.' 

cases  in  which  ordered,  as  well  as  receiver,  13,  92. 

may  be  ordered,  though  receiver  refused,  92,  106. 

may  be  refused,  though  receiver  appointed,  93. 

application  for,  to  restrain  a  receiver  from  paying  moneys  to  a 

person,  or  to  restrain  a  person  from  receiving  moneys  from  a 

receiver,  is  irregular,  186. 

INTERESSE  SUO, 

examination,  when  directed,  185,  186,  187. 

course  of  proceeding  on  examination,  185,  186,  187. 

INTEREST, 

receiver  not  entitled  to  make,  on  balances,  246. 

receiver  chargeable  with,  on  balances  not  paid  in,  256,  257,258, 

275. 
from  what  period,  accrues,  257. 
general  order  as  to,  257. 
chargeable  at  what  rate,  257,  258. 
payable  by  executors  of  deceased  receivers,  258,  259. 
receiver  appointed  to  secure  payment  of,  87. 

INTERFERENCE, 

by  third  parties  with  possession  of  receiver,  177,  178, 179,  180, 
181. 
proceedings  in  such  case  by  the  receiver,  191,  192. 

JUDGMENT  CREDITORS, 

take  what  under  an  execution,  64,  65,  72. 
receiver  appointed  at  suit  of,  61,  62,  63,  64,  65. 


316  GENERAL   INDEX. 

JUDGMENT  CREDITORS—  Continued. 
of  companies  may  have  a  receiver,  72. 
of  companies,  and  mortgagees,  priorities  between,  72,  73,  74, 

75. 
of  companies,  what  they  take,  72,  75,  76. 
may  file  a  bill  against  a  receiver  appointed  in  a  suit  instituted 

by  incumbrancers,  and  the  incumbrancers  to  have  debt  paid 

out  of  the  surplus,  185. 
receiver  appointed  on  petition  of,  under  certain  Irish  acts,  62. 
may  have  an  order  for  sale,  65,  76,  77. 
in  possession  not  required  to  attoru,  200. 

JURISDICTION, 

to  appoint  a  receiver,  1,  2,  37,  66,  67. 

pending  litigation  in  a  foreign  court,  13,  28,  37. 
pending  litigation  as  to  probate,  28,  29,  30. 
of  the  Court  of  Chancery,  to  give  redress  to  parties  for  the  mis- 
conduct of  a  receiver  in  the  exercise  of  his  duties,  231,  232, 
233,  234,  235. 

LANDLORD, 

cannot  distrain  on  land  of  a  tenant  over  which  a  receiver  has 

been  appointed  without  leave,  184,  188. 
priority  as  between  creditors  and,  in  particular  cases,  184. 

LEASEHOLDS, 

duty  of  receiver  over,  220,  221. 

LEASES, 

power  of  receiver  as  to  granting,  209,  210. 
mode  of  granting,  of  property  under  the  management  of  a  re- 
ceiver, 211,  212. 
duty  of  receiver  as  to,  211,  212. 

as  to  renewal  of,  211. 
should  be  signed  by  the  person  having  the  legal  estate,  211. 

LEGAL  ESTATE. 

receiver  not  appointed  against  owner  of,  120, 121, 122, 123, 124. 
except  in  special  cases,  81,  82,  83,  84,  85,  86,  87,  124,  125, 
L26,  127. 
receiver  appointed  against  purchaser  of,  subject  to  equitable 
interest,  126. 

LETTING  ESTATES.    See  Leases. 
power  of  receiver  as  to,  209,  210,  211. 


GENERAL    INDEX.  317 

LIABILITIES, 

of  receiver,  227. 

for  money  deposited  with  a  banker,  227,  228,  229. 

for  moneys  not  properly  paid,  228,  229,  230,  231,  242. 

for  moneys  lost  through  his  conduct,  227,  230. 

to  third  parties  for  misconduct  in  the  exercise  of  his  duties, 
230,  231,  232,  233,  234,  235. 

for  profits  made  at  expense  of  the  estate,  227. 
of  sureties,  272,  273,  274. 

LOSS, 

receiver  how  far  liable  for,  227. 

not  unless  occasioned  by  default,  227,  228,  229,  230,  231. 
when  he  deposits  moneys  in  the  hands  of  a  banker  who 
fails,  227,  228. 
solicitor  who  acts  as  receiver  liable  for,  230. 
arising  from  default  of  the  receiver  must  be  borne  by  the  estate, 
175. 

LUNACY, 

when  a  receiver  will  be  appointed  in  cases  of,  113,  114. 

receiver  may  be  appointed  on  petition  without  bill  filed, 
145. 

MANAGEMENT  OF  ESTATE, 

application  as  to,  by  the  receiver  made  in  chambers,  213,  218. 
mode  of  proceeding  in  chambers  with  reference  to,  218. 

MANAGER, 

in  what  cases  appointed,  277,  278,  279,  280. 

mode  of  appointment  of,  281,  282. 

in  partnership  cases,  93,  278. 

in  the  case  of  mines,  108,  109. 

of  a  private  trade,  277,  278. 

of  a  railway  company,  75,  76,  278,  279,  280. 

of  property  abroad  and  in  foreign  parts,  280,  281. 

security  by,  282,  283. 

new,  appointed  in  the  event  of  the  death  of  the  present  one, 

284,  285. 
commission  and  allowances  of,  285. 
not  discharged,  until  his  accounts  are  paid,  285,  286. 

MARKET, 

manager  of,  not  appointed,  280. 


318  GENERAL   INDEX. 

MAERIED  WOMAN, 

may  appoint  whom  she  pleases  receiver  of  her  separate  estate, 
156. 

MEMBER  OF  PARLIAMENT, 

whether  he  may  be  a  receiver,  142. 

MINES, 

receiver  appointed  in  the  case  of,  108, 109,  119,  120. 

MISCONDUCT, 

of  receivers,  remedies  open  to  third  parties  for,  231,  232,  233, 
234,  235. 

MONEYS.    See  Balance. 

in  hands  of  receiver  appointed  in  a  foreclosure  suit  belong  to 

plaintiff  on  dismissal  of  the  bill,  190,  191. 
improperly  paid  by  the  receiver  must  be  replaced  by  him,  180, 

181,  245. 

MORTGAGOR  AND  MORTGAGEE, 

mortgagee  having  legal  estate  cannot  have  a  receiver,  38. 
rules  as  to,  in  the  United  States,  38,  39,  40,  41,  42,  43. 

exceptions  to  rule,  43,  44,  66,  67. 
mortgagee  of  tolls  may  have  a  receiver,  53,  66,  67. 
second  mortgagee  cannot  have  a  receiver  against  prior  mort- 
gagee in  possession,  44,  45,  46,  47,  48. 
except  in  special  cases,  48,  49. 
second  mortgagee  may  have  a  receiver,  without  prejudice  to 

prior  incumbrancers,  50,  51. 
second  mortgagee  may  have  a  receiver,  if  prior  legal  mortgagee 

is  not  in  possession,  50,  51. 
equitable  mortgagee  may  have  a  receiver,  53,  54. 
receiver  appointed  under  powers  in  a  mortgage  deed,  or  under 

statutory  authority,  43,  44. 
puisne*  mortgagee  may  have  a  receiver,  though  first  mortgagee 

has  by  his  deed  of  security  a  power  to  appoint  one,  51,  52. 
arrears  of  interest  on  mortgage  a  ground  for  a  receiver,  52. 
nominee  of  mortgagee  usually  appointed  receiver,  157. 
receiver  is  in  law  the  agent  of  the  mortgagor,  38,  55. 
form  of  order  for  receiver  at  suit  of  subsequent  incumbrancers, 

54. 
mortgagee  claiming  under  a  title  paramount  to  that  under  which 

the   receiver  was  appointed   must  apply  to  the  receiver  for 

payment,  1 7:i. 
whether  a  receiver  can  be  appointed  in  a  redemption  suit,  54,  55. 


GENERAL    INDEX.  319 

NEWSPAPER, 

manager  of,  appointed,  278. 

NEXT  FRIEND, 

of  infant  cannot  be  receiver,  140. 

NOMINATION, 

of  receiver,  155,  156. 

NOTICE, 

receiver  not  appointed  except  on,  147. 

unless  in  special  cases,  147,  148. 
to  quit,  receiver  may  give,  215. 

OFFICE, 

of  receiver,  nature  of,  2,  3. 

OFFICER, 

in  the  public  service,  in  what  cases  a  receiver  will  be  appointed 
of  the  salary  of,  129. 

ORDER, 

for  receiver,  what  it  should  direct,  14,  15. 
on  parties  to  deliver  up  possession,  197, 198. 
on  tenants  to  attorn,  198,  199. 
on  tenants  to  pay  rents  to  receiver,  201,  203. 
on  receiver  to  pay  in  balance,  254,  255,  256. 
for  receiver  binds  rents  and  profits  from  date  of  the  order,  176, 
177. 
operates  for  benefit  of  parties  to  the  suit,  176. 

PARTIES, 

on  the  application  for  a  receiver,  11,  12. 
by  second  or  third  mortgagees,  52. 
to  suit  removed  from  possession  by  appointment  of  receiver, 

168,  169. 
receiver  appointed  on  behalf  of  all  interested,  171,  172,  269. 
to  suit  by  incumbrancer  to  establish  his  priority,  185,  186. 
to  suit  by  judgment  creditor  to  have  his  debt  paid  out  of  the 

surplus,  after  payment  of  prior  incumbrancers,  185. 

PARTNERS, 

principles  on  which  receiver  appointed  between,  90,  91,  92,  93, 

103,  104. 
receiver  not  appointed  between,  unless  a  case  for  dissolution  be 

made  out,  93,  94,  95. 


320  GENERAL    INDEX. 

PARTNERS—  Continued. 

bill  for  receiver  between,  need  not  pray  a  dissolution,  95,  96. 
misconduct  of  one  partner  a  ground  for  a  receiver  between,  103, 

104,  105. 
death  or  bankruptcy  of  one  partner,  not  of  itself  a  ground  for 
a  receiver,  100,  101,  102. 
when  a  ground  for  a  receiver,  102,  103. 
death  of  both,  a  ground  for  a  receiver,  102. 
receiver  appointed  between,  where  they  have  by  agreement 

divested  themselves  of  the  right  of  winding  up,  107. 
of  mining  partnerships,  108,  109. 
order  appointing  a  receiver  between,  110. 
partner  appointed  receiver,  109,  136. 

PARTY, 

to  suit,  not  in  general  appointed  receiver,  136. 

must  obtain  leave  to  propose  himself  as  receiver,  157. 
if  appointed,  will  not  be  removed  on  light  grounds,  159. 
when  appointed  must  act  without  salary,  136,  243. 

does  not  thereby  lose  his  privileges  as  party  to  the 
cause,  136,  223. 

PAYMENT, 

of  balance  by  receiver,  how  made,  253,  254. 

how  enforced  at  suit  of  parties  interested,  254,  255,  256. 
by  tenants  pending  or  after  appointment  of  receiver,  176,  177. 
by  receiver  of  moneys  under  an  order  of  a  court  of  law  is  im- 
proper, 180,  181,  245. 
of  moneys  into  court  on  application  of  the  parties  interested,  240. 

PEER, 

cannot  be  a  receiver,  142. 

PENSION, 

in  what  cases  a  receiver  will  be  appointed  of,  130. 

PERSONAL  AUTHORITY, 

of  receiver,  222. 

PERSONAL  ESTATE, 

receiver  appointed  on  bill  for  sale  of  real  estate  of  deceased 
debtor,  when  there  is  no  personal  estate,  56. 

PERSONAL  PROPERTY, 

duty  of  receiver  appointed  over,  205,  206. 


GENERAL   INDEX.  321 

PERSONAL  REPRESENTATIVES, 

of  deceased  receiver  may  apply  for  liberty  to  pass  accounts,  259, 
260. 

PETITION, 

receiver  not  appointed  on,  without  bill  filed,  144,  145. 
except  in  the  case  of  lunatics,  145. 

or  in  cases  within  the  Railways  Companies'  Act,  1867, 

144. 
or  in  cases  within  certain  Irish  acts,  144. 
defendant  should  apply  for  a  receiver  on,  54,  55,  146. 
application  by  a  person  who  is  not  a  party  to  the  cause  should 
be  by,  185,  186,  219. 

PLAINTIFF, 

may  in  special  cases  be  appointed  receiver,  155. 

PLEADING, 

on  application  for  a  receiver,  11,  12. 

pending  litigation  as  to  probate,  34,  35,  36,  37. 
where  suit  is  instituted  by  an  equitable  creditor,  61. 
where  suit  is  instituted  by  a  judgment  creditor,  63. 
where  suit  is  instituted  by  the  mortgagee  of  the  tolls  of  a 
company,  70,  71. 

POSSESSION, 

how  receiver  is  put  into,  197,  198. 
where  owner  is  in  possession,  197. 
where  tenants  are  in  possession,  198,  199,  200. 
parties  to  suit  removed  from,  by  appointment  of  receiver,  169, 

170. 
of  receiver,  disturbance  of,  a  contempt,  177,  178,  179,  180. 

even  though  he  may  have  been  improperly  appointed,  179, 

180. 
party  having  paramount  claims  may  obtain  leave  to  enforce 

his  right  notwithstanding,  185,  186,  187. 
equity  where  estate  of  stranger  comes  into,  219. 
is  possession  of  all  parties  according  to  their  titles,  172, 
173. 

POUNDAGE.    See  Allowances— Salary. 

POWERS  OF  RECEIVERS.     See  Duty  of  Receivers. 
enlargement  of,  in  United  States,  223. 
and  in  England,  224. 

21 


322  GENERAL   INDEX. 

POWERS  OF  RECEIVERS—  Continued. 
of  insolvent  companies,  224,  225. 
as  to  sale,  225,  226. 
greater  in  many  of  the  United  States  than  in  England,  196. 

PRECEDENTS.    See  Forms. 

PROBATE, 

receiver  appointed  pending  suit  as  to  granting,  28,  29,  30,  31. 

as  to  recalling  or  revoking  probate,  31,  32,  33. 
power  of  court  of  probate  to  appoint  an  administrator  and  re- 

ceiver  pending  litigation  as  to,  33,  34. 
costs  of  appointment  of  receiver  pending  litigation  as  to,  37. 

PRO  CONFESSO, 

receiver  on  bill,  152,  159, 160. 

PRO  1NTERESSE  SUO, 

practice  as  to  going  in  to  be  examined,  187,  188,  189,  190. 

PURCHASER.     See  Vendor  and  Purchaser. 

QUIT, 

notice  to,  given  by  receiver,  215. 

RAILWAY  COMPANY.     See  Companies. 

manager  of,  in  what  cases  appointed,  278,  279,  280. 

RATES, 

receiver  not  granted  of  future,  to  be  assessed  by  commissioners, 
130. 

REAL  ESTATE, 

receiver  of,  not  appointed,  where  there  is  a  trustee  having  the 

legal  estate  or  power  of  entry  and  distress,  41,  42. 
receiver  of,  not  appointed,  &c,  unless  in  special  cases,  43. 
receiver  appointed  on  bill  of  sale  of,    where  personal  estate  is 

exhausted,  55,  56. 
receiver  appointed  against  purchaser  of  legal  estate  in,  subject 

to  equitable  interests,  11,  126. 
receiver  not  appointed  against  legal  estate  in,  at  the  suit  of  a 
party  claiming  under  a  mere  legal  title,  120,  121,  122. 
L23,  124. 
unless  in  special  .cases,  81,  62,   120,  121,   124,  125,  126. 
•        127, 


GENERAL   INDEX.  323 

REAL  ESTATE—  Continued. 

receiver  appointed  at  instance  of  purchaser  of,  against  a  post- 
nuptial settlement,  86,  87. 
at  instance  of  vendor  of,  where  purchaser  was  in  embar- 
rassed circumstances,  85. 
against  tenant  in  tail  who  has  covenanted  to  suffer  a  re- 
covery, but  refuses  to  do  so,  87,  88. 
where  there  was  a  covenant  to  convey  by  way  of  securing  a 
debt,  88. 
where  receiver  appointed  as  between  tenants  in  common  of,  114, 
115,  116. 
as  between  partners  in,  108,  109,  119, 120. 

RECEIPTS, 

duty  of  receiver  to  keep,  202. 

RECEIVER, 

jurisdiction  to  appoint  a,  1. 

nature  of  the  office  of,  2. 

object  of  appointment  of,  3. 

mode  of  appointment  of,  144,  145,  146,  147,  148,  149,  150, 151, 

152,  153, 154. 
appointment  of,  a  matter  of  discretion,  3,  4. 

may  in  some  cases  be  reviewed  on  appeal,  3,  4,  149,  150. 

order  for,  operates  as  an  injunction,  13,  91,  92. 

may  be  refused,  though  injunction  is  ordered,  92,  93,  106. 

what  order  for,  should  direct,  14,  15. 

time  when  application  for,  may  be  made,  149, 150, 151, 1 52. 
principles  on  which  appointed,  6,  7,  8,  9,  10. 
who  maybe,  136,  137, 138,  139,  140,  141. 
nomination  of,  155,  156,  157, 158,  159,  160. 
consideration  looked  to  in  selecting  a,  141,  142,  156. 
is  generally  chosen  in  chambers,  155. 
person  named  by  party  having  the  conduct  of  the  proceedings 

is  generally  appointed,  156. 
when  appointed  will  not  be  removed  on  light  grounds,  159. 
duly  appointed  is  an  officer  of  the  court,  168, 177. 
protected  in  the  discharge  of  his  office,  177,  178  179, 180. 
may  not  be  interferred  with  without  leave,  177,  178,  179,  180, 

181. 
effect  of  appointment  of,  168,  170,  172. 
right  not  affected  by  appointment,  170,  171,  172. 
considered  agent  of  party  entitled,  174,  175. 
appointment  on  behalf  of  all  parties  interested,  172,  173. 


324  GENERAL   INDEX. 

RECEIVER—  Continued. 

appointment  of,  does  not  stand  in  the  way  of  the  legal  rights 

of  parties  having  paramount  claims,  183, 184,  185,  186,  187, 

188,  189,  190. 
duty  of,  196,  197,  198,  199,  200,  201,  205. 
distinction  between  statutory  assignees  in  many  of  the  United 

States  and,  196. 
must  take  proper  receipts,  202. 
must  not  involve  the  estate  in  expense,  215,  216. 
should  not  interfere  in  any  litigation  between  the  parties,  221. 
should  not  originate  proceedings  in  the  cause,  222,  223. 
may  in  some  cases  file  a  bill  to  restrain  waste,  223. 
duty  of,  when  tenants  are  interfered  with,  221. 
cannot  be  tenant,  either  personally  or  through  the  medium  of  a 

trustee,  of  the  estate  over  which  he  is  receiver,  212. 
what  payments  he  may  make  without  a  special  order,  174,  220. 
notice  to  quit  by,  under  what  circumstances  it  may  be  given, 

215. 
may  employ  bailiff  to  distrain,  202. 
cannot  bring  ejectment  without  leave,  216. 
power  of,  as  to  repairs,  216,  217,  218. 

as  to  granting  leases,  209. 
should  apply  to  the  judge  as  to  the  management  of  the  estate, 

196,  205,  206. 
cannot  make  a  profit  at  expense  of  the  estate,  227. 
bound  forthwith  to  pay  into  court  all  balances  in  his  hands, 

229,  253,  254. 
may  not  make  interest  on  the  balance  in  hand,  246. 
liabilities  of,  227,  228,  229,  230,  231. 

to  third  parties  for  misconduct,  231,  232. 
salary  and  allowances  of,  236,  237,  238,  239,  240,  241,  242,  243, 

244,  245. 
accounts  of,  247,  248. 

passing,  248,  249,  250,  251. 
discharge  of,  263,  264,  265,  266,  267,  268,  269,  270,  271. 
not  removed  except  for  substantial  reasons,  159. 

RECEIVER  GENERAL  OF  COUNTY, 
cannot  be  receiver,  143. 

RECOGNIZANCE, 

receiver  required  to  outer  into,  160,  161,  162,  163. 
where  dispensed  with  or  modified,  L63. 

mode  of  acknowledging,  164,  L65. 


GENERAL   INDEX.  325 

RECOGNIZANCE—  Continued. 
as  to  enrolling,  165. 

■when  and  how  put  in  suit,  2G0,  261,  262. 
as  to  vacating,  270,  271. 

course  of  surety  where  an  action  is  brought  against  him  on  the, 
275. 

REMOVAL  OF  RECEIVER, 

not  ordered  except  on  substantial  grounds,  159. 
ordered  where   his   private  interests  are   in   conflict  with  his 
duties,  137,  138,  139. 

RENEWAL  OF  LEASES, 
duty  of  receiver  as  to,  211. 

RENT, 

receiver  entitled  to  arrears  of,  200,  201. 

may  apply  by  summons  that  tenant  pay  the,  201. 
in  what  cases  party  in  possession  charged  with  occupation,  200. 
receiver  cannot  raise  or  abate  the,  212,  213. 

RENT  CHARGE, 

in  what  cases  owner  of,  may  have  a  receiver,  44. 

person  who  has  sold  land  to  a  railway  company  in  consideration 
of,  may  have  a  receiver,  68. 

owner  of,  must  obtain  leave  to  distrain,  if  a  receiver  be  in  pos- 
session, 188. 

RENTS  AND  PROFITS, 

bound  from  date  of  order  for  appointment  of  receiver,  176,  177. 

REPAIRS, 

receiver  cannot  lay  out  money  at  his  own  discretion  in,  216,  217, 

218. 
moneys  expended  by  him  in,  may  be  allowed,  216,  217,  245. 
receiver  should  apply  to  the  judge  in  chambers,  as  to,  217. 

RESCUE, 

of  distress,  remedy  in  case  of,  205. 

SALARY.     See  Allowances. 
of  receiver,  236,  237,  238,  239. 
time  of  fixing  amount  of,  236,  245. 

in  what  cases  a  receiver  will  be  appointed  without,  136,  138, 
243. 


326  GENERAL   INDEX. 

SALARY—  Continued. 

in  what  cases  a  receiver  cannot  be  appointed  over  the,  of  a 

person,  128,  129. 
disallowance  of,  of  receiver,  256,  271. 

SALES  BY  RECEIVER,  225,  226. 

SCIRE  FACIAS, 

on  recognizance,  proceedings  by,  261. 

SECURITY, 

receiver  required  to  give,  160,  161,  162,  163. 
in  what  cases  dispensed  with,  163. 

SELECTION, 

of  person  to  be  receiver,  155,  156,  157. 

SHERIFF, 

may  not  disturb  the  possession  of  a  receiver,  193,  194. 
will  be  restrained  from  compelling  a  receiver  to  interplead,  194. 
order  where  property  in  possession  of  a  receiver  had  been  taken 
by  the  sheriff,  193,  194. 

SHIP, 

receiver  appointed  of  freight  of,  131. 

SOLICITOR, 

in  the  cause  cannot  be  receiver,  141. 

for   petitioning   creditors   in    bankrupt    proceedings,   may   be 

receiver,  141. 
may  be  receiver  in  what  cases,  141. 
receiver  should  not  employ  as  his,  the  solicitor  of  the  plaintiff, 

241,  251. 
receiver  appointed  of  profits  of  business  of,  131. 
acting  as  receiver  liable  for  loss,  230. 

SPECIFIC  PERFORMANCE, 

receiver  appointed  pending  suit  for,  85,  86,  87,  126. 

STATUTE  OF  LIMITATION, 

not  affected  by  appointment  of  receiver,  172. 

SUMMONS, 

receiver  may  be  appointed  iu  a  suit  commenced  by,  145. 

SUEETT, 

for  receiver,  who  may  not  be,  164. 
objection  to  person  proposed  as,  164. 


GENERAL   INDEX.  327 

SURETY—  Continued. 

not  discharged  at  his  own  request,  272. 

unless  under  special  circumstances,  272. 
on  discharge  of,  fresh  recognizance  necessary,  272. 
bankruptcy  or  death  of,  without  leaving  property,  273. 
order  on  discharge  of,  273,  274. 
extent  of  liability  of,  274. 

allowed  to  attend  passing  accounts  of  bankrupt  receiver,  274. 
putting  recognizance  in  suit  against,  260,  261,  262. 
may  apply  to  stay  proceedings  against  him  on  the  recognizance, 

275. 
paying  moneys  for  receiver  entitled  to  be  indemnified,  276. 
to  whom  he  should  pay  moneys,  275,  276. 

TENANTS, 

must  attorn  to  the  receiver,  198,  199. 

how  receiver  may  proceed  against,  when  rents  in  arrear,  200, 
201,  202,  203. 

TENANTS  IN  COMMON, 

in  what  cases  a  receiver  may  be  appointed  between,  114,  115, 

116,  117,  118,  119. 
receiver  appointed  between  infants,  not  discharged  on  one  of 

them  coining  of  age,  118,  119. 

TENANT  FOR  LIFE, 

receiver  appointed  against,  89. 
must  pay  costs  of  the  receiver,  246. 

on  the  death  of,  the  possession  of  the  receiver  is  at  an  end,  190, 
263. 

TENANT  IN  TAIL, 

receiver  appointed  against,  who  covenanted  to  suffer  a  recovery 
and  refused  to  do  so,  87,  88. 

TIMBER, 

receiver  should  apply  to  the  judge  in  chambers  for  leave  to  cut, 
218. 

TOLLS, 

of  an  undertaking,  receiver  may  be  appointed  of,  66,  67,  130, 

131. 
of  an  undertaking,  mortgage  of,  what  it  conveys,  74. 

TRUSTEE, 

receiver  not  appointed  against,  on  light  grounds,  18,  19,  20. 


328  GENERAL   INDEX. 

TRUSTEE—  Continued. 

misconduct  of,  a  ground  for  a  receiver,  20,  21,  22,  26,  27,  28. 

bankruptcy  of,  when  a  ground  for  a  receiver,  22,  23. 

poverty,  &c,  of,  when  a  ground  for  a  receiver,  24,  25. 

sole,  abroad,  when  a  ground  for  a  receiver,  25. 

receiver  appointed  on  consent  of,  25,  26. 

receiver  appointed  against,  where  trust  arises  by  implication, 

27,  28. 
cannot  be  receiver,  137,  138,  139,  140. 

unless  in  special  cases,  137,  138. 
appointed  receiver  must  act  without  salary,  138,  139. 

except  in  special  cases,  139. 

TURNPIKE  TOLLS, 

receiver  appointed  over,  130, 131. 

VACATING  RECOGNIZANCE,  270,  271,  273. 

VENDOR  AND  PURCHASER, 

receiver,  where  appointed  in  cases  between,  81,  82,  83,  84,  85, 

86,  87. 

VOUCHERS, 

receiver  must  keep,  202. 

WARD  OF  COURT, 

as  to  opening  accounts  of  receiver  with,  231. 

WASTE, 

in  what  cases  receiver  may  file  a  bill  to  restrain,  223. 
lessee  of  land  in  possession  of  receiver  restrained  on  motion 
from  committing,  219. 

WEST  INDIES, 

receiver  appointed  of  estates  in  the,  133,  281. 

WRIT  OF  ASSISTANCE, 

in  what  cases  it  may  be  obtained  by  a  receiver,  197. 


THE   END. 


>1 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  760  097    6 


